Custom, Excise & Service Tax Tribunal
Ismt Ltd vs Cce, Aurangabad on 5 May, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/1211/08 - Mum
(Arising out of Order-in-Appeal No. JAK(210)90-A/08 dated 05.08.2008 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
ISMT Ltd.
:
Appellants
Versus
CCE, Aurangabad
Respondents
Appearance Shri Sushanth Murthy, Advocate for Appellants Shri N.A. Sayyad, JDR for Respondents CORAM:
Honble Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 05.05.10 Date of Decision : ORDER NO.
Per : Ashok Jindal The appellant has filed this appeal against the rejection of their refund claim of Rs.8,26,649/-.
2. The facts of the case are that during the year 2003 04 the appellant purchased inputs i.e. steel round bars from M/s. ISMT, Jejuri, Pune. These inputs were sent to job worker and the appellant short received the processed inputs by 91.54 MT from the job worker involving duty of Rs.8,26,649/- for which the appellant raised debit notes / supplementary invoices. During the course of audit it was noticed by the Central Excise auditors that as per Rule 11 of Central Excise Rules, 2002 the credit was available to the supplier to whom such debit notes were raised. Therefore, on pointing out by the Audit the appellant debited the amount of Rs.8,26,649/- in their CENVAT account. Later the appellant realized that the amount of Rs.8,26,649/- has been debited twice i.e. once before audit and secondly at the time of audit. Therefore, the appellant filed refund claim which was rejected and the same was confirmed by the Commissioner (Appeals). Hence, the appellant is before me.
3. Shri Sushanth Murthy, ld. Advocate appearing on behalf of the appellant submitted that, on realization that the CENVAT credit has been reversed twice and the same was admitted by the Superintendent who also confirmed that the assessee has reversed second time an amount of Rs. 8,26,649/- they filed refund claim. Hence, the rejection of refund claim is not justified.
4. On the other hand the learned DR submitted that it is not the case of reversal of CENVAT credit twice. Before the audit the appellant has raised supplementary invoice for which Principal manufacturer is entitled to take CENVAT credit hence that is not reversal. The refund claim rejected by the lower authorities is correct and the appeal is liable to be dismissed.
5. Heard both sides and perused the records.
6. On careful examination of the records, I find the contention of the appellant that they have reversed twice, once before audit and secondly at the time of audit, is not substantiated by any documentary evidence. Although the Range Superintendent confirmed the second reversal, the range Supdt. has not confirmed when it was reversed first time and the Commissioner(Appeals) in his order has clearly observed that no document conclusively prove that the appellant have reversed the CENVAT credit twice. Without any documentary evidence the appellant is not entitled for the refund claim. The Commissioner (Appeals) has rightly observed in his order. In that situation, I do not find any reason to interfere the impugned order and the same is upheld.
7. The appeal filed by the appellant is rejected.
(Pronounced in Court on ..) (Ashok Jindal) Member (Judicial) nsk 3