Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise vs Ucal Systems Ltd. on 23 February, 2004
Equivalent citations: 2004(94)ECC304, 2004(171)ELT70(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This is an appeal filed by the Revenue against the Order-in-Appeal No. 278/03 (M.I), dated 4.7.2003. To avoid repetition of facts and findings, it is appropriate to extract the order, which is reproduced herein below:-
Vide the impugned Order, the Lower Authority had held as follows:
"I observe from the records and from the admission of the assessees that the duty of Rs. 1,06,014 was paid on 19.7.1999 and Rs. 13,093 was paid on 31.5.1998 by their Maraimalai Nagar Unit but the 57-E certificate applied for by the Maraimalai Nagar Unit was not complied with by the jurisdictional Range officer. But, it passes comprehension of any prudent person as to why the Maraimalai Nagar Unit waited upto 13.11.2000 without taking any remedial action if the action on the part of the jurisdictional Range Officer is not justified on any grounds. It is on record that the Maraimalai Nagar Unit paid the differential duty for the period June 1997 to October 1997 on 31.5.1998 and for the period April 1998 to October 1998 on 19.7.1999. If such differential duties are to be passed on as Modvat credit, the procedure available on that day was obtaining 57-E certificate from the jurisdictional Range Officer. But the differential duty certified under Rule 57-E was to have been taken within 6 months from the date of issue of 57-E certificate in line with Rule 57G(5) of the Central Excise Rules, 1944. In the instant case, the 57-E certificate was not issue at all and, therefore, the question of taking the credit within 6 months did not arise.
Accordingly, he has ordered recovery of Cenvat credit of Rs. 1,19,097 (Rupees one lakh nineteen thousand and ninety seven only) and imposed a penalty of Rs. 30,000 (Rupees thirty thousand only).
Parallel proceedings were initiated by the Additional Commissioner (Preventive) against the sister concern. M/s. Ucal Fuel Systems Ltd., Maraimalai Nagar culminating in Order-in-Original No. 44/02, dated 30.8.2002, wherein, apart from dropping all proceedings it was further held.
Duty voluntarily paid on 19.7.1999 has to be construed as payment of differential duty due on clearances made between 1.4.1998 and 30.10.1998 and credit of this duty can be taken by their Pondicherry unit if not already taken.
In view of this order, the Appellant contends that they have correctly taken credit. I agree with the Appellant. As a consequence of Order-in-original No. 4402, dated 30.8.2002, the findings rendered in the impugned Order-in-original No. 3/02, dated 2.1.2002 becomes infructuous. Hence, I set aside the impugned order and allow the appeal."
The Revenue contend that the supplementary invoices were re-issued under 57 AE of the Central Excise Rules, 1944 for the duty payment made in the past. The issue of certificate was rejected as the additional payment of duty was recovered on account of suppression of facts. The supplementary invoices are not valid within the meaning of Notification No. 51/2000, C.Ex. (N.T), dated 29.8.2000, and hence, they seek for the confirmation of the original order.
2. Ld. JDR Shri C. Mani submits that the Commissioner's findings restricts to only one supplementary invoice covering the period June-October, 1997 and for the rest of supplementary invoices and for the remaining demands amount, no justification was given by the Commissioner. He seeks for the remand of the matter.
3. Ld. Counsel Shri J.S. Raman submits that the other two supplementary invoices pertains to the duty paid subsequently, for which the authorities have held that there was no suppression of facts as alleged by the department. Therefore, in terms of Board's Circular F.No. 345/2000-TRU, dated 29.8.2000, the supplementary invoices is required to be accepted, which has been done by the Commissioner and there is no merits in the Revenue appeal.
4. On a careful consideration, I notice from the impugned order which is already extracted, the Commissioner has noted about the parallel proceedings initiated against the sister concern, wherein, duty paid voluntarily has been construed as payment of differential duty for the period 1.4.98 and 30.10.98. He has also noted that the duty has been paid voluntarily and correctly for which the credit is required to be extended, since, the credit has been taken in accordance with the rules. Ld. Counsel also produced the Order-in-Original No. 44/2002, dated 30.8.2002 passed by the Additional Commissioner (Appropriation), wherein, he has clearly noted that there was no allegation of suppression in the matter. Therefore, the contention raised by the Ld, Counsel is required to be accepted in terms of the Board's Circular. There is no infirmity in the order. The order appealed is legal and proper and hence, the Revenue appeal is rejected.