Custom, Excise & Service Tax Tribunal
M/S Swaroop Thermopack P.Ltd vs Cce, Jaipur on 22 March, 2012
CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
West Block No. 2, R.K. Puram, NEW DELHI
COURT No. III
Stay Application No.1221 of 2011 in
Excise Appeal No.990 of 2011(SM)
Date of Hearing / Decision : 22.03.2012.
[Arising out of Order-In-Appeal No.07(DKV)/CE/JPR-I/2010, dated 21.01.2011 issued by CCE, Jaipur-I]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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?
M/s Swaroop Thermopack P.Ltd. Appellants
Versus
CCE, Jaipur Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Present for the Appellants Shri Alok Kothari, Adv.
Present for Respondent Shri R.K.Gupta, DR Order No._______________ Dated :___________ Per Ms. Archana Wadhwa:
After dispensing with the condition of pre-deposit of duty and penalty, I proceed to dispose of the appeal itself in as much as the issue lies in a narrow compass.
2. The appellants are engaged in the manufacture of Thermocol Moulds which are cleared by them on payment of duty. In some cases, the goods are returned back from their customers on account of various reasons and the appellants had taken Modvat credit of duty originally paid on the said goods at the time of removal.
3. Proceedings were initiated against them on the ground that credit is not available in terms of provisions of Rule 16(1) as the appellants are not undertaking any process of re-manufacture, re-process etc. in respect of the said goods. Accordingly, the demand was confirmed by the original adjudicating authority.
4. On an appeal, Commissioner(Appeals) confirmed the order of the original adjudicating authority. It is seen from the impugned order that the basic reason for denial of such credit is lack of evidences required to be proved by the appellants that after receipt of returned goods in their factory, the same were cleared on payment of duty. I find that the above reasons adopted by Commissioner (Appeals) relate to factual verification of the records. Ld. Advocate has placed on record the reconciliation statement showing receipt of goods and their specific clearance. As I otherwise find that the provisions of Rule 16(1) are wide enough to allow return of the goods for any reason and the assessee to avail the credit of the duty already paid on the same and in as much as the dispute relates to the factual position which can only be verified and examined at the original stage, I set aside the impugned order and remand the matter to the original adjudicating authority for verification of the facts and the reconciliation chart prepared by the appellants.
5. The stay petition as also appeal get disposed of in above manner.
(Pronounced in the open court) (Archana Wadhwa) Judicial Member RK-I 2