Custom, Excise & Service Tax Tribunal
Shri Vijay Kumar Mishra vs C.C.E. Jaipur-Ii on 30 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. E/1114/2011-EX(SM)
[Arising out of Order-in-Appeal No. 35(CB)CE/JPR-II/2011 dated 23.02.2011 (Appeals), by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].
For approval and signature:
Hon'ble Shri S.K. Mohanty, 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?
No
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?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
Shri Vijay Kumar Mishra .Applicants
Vs.
C.C.E. Jaipur-II .Respondent
Appearance:
Shri Rahul Tangri, Advocate for the Applicants Shri R.K. Mishra, DR for the Respondent CORAM:
Hon'ble Shri S.K. Mohanty, Member (Judicial) Date of Hearing: 30.11.2016 FINAL ORDER NO. 56199/2016-EX(SM) Per S.K. Mohanty:
This appeal is directed against the impugned order dated 29.01.2011 passed by the Commissioner of Central Excise (A) Jaipur.
2. In this case, for irregular availment of cenvat credit on dumpers and parts thereof, the department proceeded against M/s. Ultratech Cement Ltd. (Formerly known as M/s. Aditya Cement Works) for confirmation of Cenvat Credit demand and also for imposition of penalty on the authorized signatory, Shri B.K. Mishra. The dispute was adjudicated vide order dated 27.10.2010, wherein cenvat demand of Rs.4,51,793/- along with interest was confirmed and equal amount of Penalty was imposed on M/s Aditya Cement Works. Further, penalty of Rs 5,000/- under Rule 15(2) of the cenvat credit Rules, 2004 and Rs. 4,51,793/- under Rule 26 of the Central Excise Rule, 2002 were imposed on Shri V.k. Mishra, the appellant herein.Woks.
3. The Ld. Counsel appearing for the appellant submits that the adjudication order dated 27.10.2010 was upheld by Ld. Commissioner (A) vide Order-in-Appeal no. 12(CB)CE/JPR-II/2011 dated 07.02.2011 and in appeal against the said order, the Tribunal vide order dated 19.10.2016 (Appeal no. E/1097/2011-EX(SM)) has set aside the said Order-in-Appeal and allowed appeal in favour of the appellant. M/s. Aditya Cement Works with consequential benefit. The Counsel submits that since the duty demand confirmed against the assessee manufacturer M/s. Aditya Cement Works has already been set aside by the Tribunal, the appellant herein, who is a employee of the said company, cannot be exposed to the penal consequences.
4. Ld. DR appearing for the Revenue reiterates the findings recorded in the impugned order.
5. I find that the Tribunal has dropped the duty demand confirmed against M/s. Aditya Cement Works, holding that Cenvat Credit is permissible on the dumper and part thereof. Since the proceedings were dropped against the assessee, subsequent proceedings initiated against the present appellant, who was the authorized signatory of the assessee cannot continue, since no demand exit on the assessee.
6. Therefore, I do not find any merits in the impugned order and allow the appeal filed by the appellant.
[Dictated & Pronounced in the open Court] (S.K. Mohanty) Member (Judicial) Bhanu 3 E/1114/2011-EX(SM)