Customs, Excise and Gold Tribunal - Tamil Nadu
India Pistons Ltd. vs Cce on 1 March, 2005
Equivalent citations: 2005(100)ECC193
ORDER T.K. Jayaraman, Member (T)
1. The issue is whether the appellants are entitled to deemed credit during the relevant period as per the Govt. of India's order. The entire chronology of events leading to this dispute need not distract us. Suffice it to say that the impugned order upholds the Order-in-Original issued by the Deputy Commissioner of Central Excise, Chennai consequent to the remand order of the Larger Bench of the Tribunal in the case of Machine Builders v. CCE, Bolpur, 1996 (83) ELT 576.
2. Shri Krishna Srinivasan, Ld. Adv. appeared for the appellants and Smt. R. Bhaghya Devi, Ld. SDR appeared for the revenue.
3. Ld. Advocate contends that the original authority who decided the issue, has gone beyond the scope of the remand order. The Commissioner (Appeals) has also simply confirmed the Order-in-original. Referring to the cross-examination of the supplier of aluminium ingots to the appellant, Ld. Advocate stated that for the question No. 18 "Are you availing any exemption under the Central Excise during the related period?" Shri Anser Basha, Managing Partner of M/s. B.S. Metal Mart, Bangalore answered "No". This shows that the supplier of the ingots has not availed any exemption notification. In that case it is clear that they have not availed the exemption Notification No. 100/88 dated 1.3.1988. The remand order requires that the adjudicating authority should decide after investigation whether the supplier availed the said exemption or not. Since the supplier himself has stated categorically that he had not availed any exemption, the adjudicating authority ought to have given a finding that the appellant is entitled to deemed credit as his raw material is not clearly recognizable as non-duty paid. This is the thrust of the Ld. Advocate's argument. In view of the above submission he pleaded that the Tribunal may set aside the impugned order.
4. Ld. SDR submitted that the supplier of the aluminium ingots manufactured the ingots out of duty paid aluminium scrap. In view of the duty paid nature of the aluminium scrap he was rightly entitled for the benefit of Notification No. 100/88. It is also a fact that there is no evidence that M/s. B.S. Metal Mart, Bangalore who supplied aluminium ingots cleared them on payment of duty. Since it is evident that the aluminium ingots cleared from M/s. B.S. Metal Mart have not discharged any Central Excise duty they are clearly recognizable as non-duty paid goods. The deemed credit cannot be given if the raw materials are clearly recognizable as non-duty paid. Hence, in this case the decision of the original authority is very correct in denying the deemed credit and it is in accordance with the instructions of Govt. of India. She further stated that the adjudicating authority has confined himself to the remand order and has not overstepped the same. She emphasized the point that it is not the intention of the Govt. to give deemed credit on non-duty paid raw materials.
5. We have gone through the rival contentions. It is true that the remand order of the Larger Bench of the Tribunal requires the original authority to investigate whether the manufacturer of the inputs satisfied the condition imposed by the Notification No. 100/88 dated 1.3.1988 and has also availed the same. The adjudicating authority has given a finding that the manufacturer of the inputs has satisfied the conditions and availed the exemption. In the cross-examination, no doubt, Anser Basha of M/s. B.S. Metal Mart stated that they had not availed any exemption. Ld. Advocate is harping on this and wants us to believe the same. First of all we want to make it clear that whatever is stated in the cross-examination is not gospel truth to be accepted without critical examination. The adjudicating authority has given a very well reasoned order. It is a fact that M/s. B.S. Metal Mart supplied aluminium ingots to the appellants. It is also a fact that there is no evidence that they have paid any duty. This clinches the issue. In other words, aluminium ingots received by the appellants are clearly recognizable as non-duty paid. The adjudicating authority has taken pains to elaborate the issue. After all, aluminium ingot is an excisable commodity. The manufacturer of M/s. B.S. Metal Mart are not entitled for SSI exemption. Therefore, they should have paid duty. Why did they not pay duty? For the simple reason that they satisfied the conditions of Notification No. 100/88. This is as simple as that. In our view the adjudication order is a very well reasoned one. The Commissioner (Appeals) also in his Order-in-Appeal has extracted the directions of the remand order and has given enough justification to uphold the Order-in-Original. Ld. SDR has also correctly pointed out that it is not the intention of the Govt. to allow deemed credit when it is very evident that the raw material or the inputs have not suffered any duty. In view of the above findings, the appeal is rejected.