Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. Prism Cement Ltd on 14 June, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Excise Appeal No. 3056 of 2007
[Arising out of Order-In-Appeal No. 93-CE/BPL/2007-08 dated 12.9.2007 passed by Commissioner of Customs & Central Excise (Appeals ), Bhopal (MP) ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. V Padmanabhan, Member (Technical)
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?
Yes
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
Commissioner of Central Excise Appellants
Bhopal
Vs.
M/s. Prism Cement Ltd. Respondent
Appearance:
Shri Yogesh Agarwal, AR for the Appellants Shri B L Narasimhan, Advocate for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. V Padmanabhan, Member (Technical) Date of Hearing/ Decision: 14.06.2016 FINAL ORDER NO . 52158 /2016 Per Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal.
2. After hearing both the sides, duly represented by Shri Yogesh Agarwal, learned DR appearing for the Revenue and Shri B L Narasimhan, learned Advocate appearing for the assessee, we find that the dispute arose between the respondent and the Revenue as regards the availability of Cenvat Credit of duty paid on the capital goods used in the mines. Such dispute resulted in passing of the order by the respondents jurisdictional Commissioner denying the credit. Inasmuch as the respondent had already reversed the availed credit to the tune of Rs.98 lakhs though under protest, the Commissioner while adjudicating against the respondent has appropriated said deposits / reversal made by the assessee.
3. It seems that the said order of the Commissioner was not challenged by the assessee before the Higher Appellate forum. In the meanwhile, identical disputes in the case of other assesses reached the Honble Supreme Court wherein the present respondent also joined hands and as per the final decision of the Honble Supreme Court, the cement manufacturer are entitled to avail cenvat credit of duty paid on the capital goods used in the captive mines. As a result, the credit reversal made by the respondents can be termed as having been made against declaration of law by the Honble Supreme Court.
4. In terms of the above decision of the Honble Supreme Court, the respondent filed refund of duty of Rs.98,15,268/- on the ground that reversal was made by them under protest. However, the Revenue took a stand that the said protest lodged by the Respondent came to an end with the passing of the order passed by the Commissioner of Central Excise. The said order of the Commissioner was not put to challenge by the assessee at any point of time and as such, attained finality. On the said ground, original adjudicating authority rejected the refund claim.
5. On appeal against the said order, the Commissioner (Appeals) observed that inasmuch as the assessee was also a party to the petition filed before the Honble Supreme Court in the case of M/s. Vikram Cement, it has to be held that the matter was taken up by the assessee directly before the Honble Supreme Court. As such, he observed that even though Commissioners order was not challenged, assessee would be entitled to Cenvat credit already reversed by them in the light of law declared by the Honble Supreme.
6. Being aggrieved with the said order, Revenue has filed the present appeal. During the course of hearing, a specific question was put to Advocate appearing for the assessee that at the time of hearing before Commissioner, while denying the credit, whether Commissioner appropriated already reversed credit and whether the order was put to challenge before the Honble Supreme Court or was there any mention of the said order, the learned advocate fairly agrees that the assessees joined hand with the other similar situated cement manufacturers only on principle dispute. There was no specific challenge to the Commissioners order either before the Honble Supreme Court or before the Tribunal. He accordingly fairly agrees that the said order of the Commissioner has attained finality.
7. Learned DR refers to the Honble Supreme Court order in the Union of India vs. Saraswati Marble & Granite Industries Pvt Ltd. reported as [2015 (326) ELT 427 (SC)]. In an identical circumstances, it was held by the Honble Supreme Court that after the proceedings had attained finality and have not been challenged before the higher authorities, the benefit cannot be extended to that particular assessee in view of a subsequent decision by the Supreme Court. Otherwise also we find that the issue is no more res integra. In the absence of fact of filing the appeal against Commissioners order denying the credit, it has to be held that the Commissioners order attained the finality. In such circumstances, the benefit of any subsequent decision of higher forum, cannot be extended inasmuch as the assessee has not kept the proceedings alive during the in between period so as to infuse life into the same. The proceedings having become dead, cannot be made alive subsequently. As such, we fully agree with the learned DR that the refund sanctioned by Commissioner (Appeals) is against the settled decision of law. Accordingly, the impugned order is set aside and Revenues appeal is allowed.
(dictated and pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
( V Padmanabhan)
Member(Technical)
ss
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