Custom, Excise & Service Tax Tribunal
Kumar Precision Stampings Pvt.Ltd vs Cce, Rohtak on 2 November, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court No.3
E/Stay/2137/11 in Appeal No.1637 of 2011
(Arising out of Order-in-Appeal No.147/BK/RTK/2011 dt.20.4.2011 passed by the CCE(A), Delhi-III)
Date of Hearing/Decision: 02.11.2011
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Kumar Precision Stampings Pvt.Ltd. Appellant
Vs.
CCE, Rohtak Respondent
Present for the Appellant: Shri P.C.Jain, Advocate
Present for the Respondent: Ms.R.Jagdev, SDR
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
ORDER NO._______________
PER: ARCHANA WADHWA
After dispensing with the condition of pre-deposit of duty Rs.24,299/- and penalty of Rs.5,000/-, I proceed to decide the appeal itself as the short issue involved in the present appeal.
2. The applicants/appellants are engaged in the manufacture of electrical stampings and die cast rotors. They cleared the said goods under the cover of invoices to their customers, who rejected the same and sent back to the appellants under the cover of their delivery challan accompanied by invoices originally issued by the appellants. The appellant took credit of duty paid on the said rejected goods.
3. The proceedings were initiated against the appellants by way of issuance of show cause notice dt.16.4.09 alleging that that since the goods stands returned to them under cover of delivery challan which did not show element of details of duty, the appellant cannot take credit of duty originally paid by them. During the course of adjudication, the appellant took categorical stand that inasmuch as their customers were not working under the Central Excise authorities, they could not issue central excise invoices. They further contented that as invoices issued by them at the time of original clearance of the products accompanied the said challan the same should be considered as duty paying document and the credit should be allowed on the same. For the above proposition, they relied upon the Tribunals decision in the case of BAPL Industries Ltd. vs. CCE, Coiibatore-2006 (198) ELT 587(Tri.).
4. It is seen that the original adjudicating authority has accepted the position, but denied the credit on the ground that goods rejected and sent under the delivery challan are different from the goods originally cleared by the appellant under the central excise invoices. Accordingly, he denied the credit and imposed penalty. On appeal against the above order, the appellant authority observed that inasmuch as the goods were received against the delivery challan, the same cannot be considered to be a duty paying document for the purpose of credit. Accordingly, without dealing the appellants plea that the goods supplied under invoices and delivery challan issued by the customers are same, he rejected the appeal.
5. The appellants grievance is that the original adjudicating authoritys findings that the returned goods are not identical are beyond the scope of the show cause notice; inasmuch as there was no such allegation in the show cause notice. Even the Commissioner (Appeals) has not dealt with same.
6. Learned SDR appearing for the Revenue submits that the fact that as to whether the goods received by the appellants were the same very goods which were originally cleared by them is required to be verified, even though there may not be a specific allegation to that effect in the show cause notice inasmuch as invoice on the basis of which credit was availed are required to be verified in respect of the same very goods.
7. In his rejoinder, learned Advocate submits that they are in a position to satisfy the original adjudicating authority as regards the goods being same very goods which were originally cleared by them. He submits that an opportunity for the said purpose may be given.
8. I agree with learned Advocate. The legal issue having been decided in favour of the assessee by the original authority it was not open to the Commissioner (Appeals) to reject the appeal on the same very ground without there being any cross appeal by the Revenue. As such, only issue required to be decided is as to whether the returned goods are same goods which were originally cleared by the appellants. Inasmuch as the appellants did not get an opportunity to establish the same (as there was no allegation in the show cause notice), I set aside the impugned order and remand the matter to the original adjudicating authority for verification and reconsidering the appellants claim. Needless to say that the appellants would be given an opportunity for the same.
9. The stay petition as also appeal gets disposed of in above terms.
(Pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) mk 5