Custom, Excise & Service Tax Tribunal
M/S. Super Forgings Steels Ltd. ... vs Commissioner Of Central Excise, ... on 15 May, 2009
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH:KOLKATA
EXCISE APPEAL NO.EDM-356/05 & CO.130/05
(ARISING OUT OF ORDER-IN-ORIGINAL NO.11/CH-72/COMMISSIONER/CE/KOL-II/ADJ/05
CCE/KOL-II/ADJ/11/05
DATED 31.03.2005 PASSED BY COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II COMMISSIONERATE)
FOR APPROVAL AND SIGNATURE
SHRI S.S.KANG, HONBLE VICE-PRESIDENT
DR. CHITTARANJAN SATAPATHY, HONBLE TECHNICAL 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
Authorative 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?
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M/S. SUPER FORGINGS STEELS LTD. (UNIT-I) APPELLANT (S) VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II RESPONDENT(S) APPEARANCE:
SHRI K.K.BANERJEE, ADVOCATE FOR THE APPELLANT(S) SHRI K.P.SINGH, S.D.R. FOR THE RESPONDENT(S) CORAM:
SHRI S.S.KANG, VICE-PRESIDENT DR. CHITTARANJAN SATAPATHY, TECHNICAL MEMBER DATE OF HEARING/ DECISION: 15.05.09 ORDER NO. Per Dr. Chittaranjan Satapathy Heard both sides.
2. Learned Advocate, Shri K.K.Banerjee appearing on behalf of the Appellants states that the Appellants have received inputs from their Dankuni Unit in the jurisdiction of Kolkata-IV Commissionerate for use in their Howrah Unit in the jurisdiction of Kolkata-II Commissionerate and that when their Dankuni Unit paid the additional duty, as demanded by the Department and their Howrah Unit has taken credit on the same on the basis of supplementary invoices issued. The impugned Order passed by the Adjudicating Commissioner having jurisdiction on their Howrah Unit has disallowed the credit amounting to Rs.26,98,162.00 and has also imposed an equal penalty apart from demanding interest. Learned Advocate, Shri Banerjee argues that the situation was revenue-neutral and this was not a case of fraud, collusion, misstatement or suppression requiring reversal of credit.
3. Heard the learned S.D.R., Shri K.P.Singh who supports the impugned Order and states that the demand was raised by the Kolkata-IV Commissionerate against the Dankuni Unit as appropriate duty was not initially paid and therefore, their Howrah Unit cannot take credit of the same.
4. After hearing both sides and perusal of the impugned Order, we find that the Adjudicating Commissioner has duly referred to the provisions of Rule 7(1) of the CENVAT Credit Rules, 2002 which is relevant for denying the credit, but nowhere in his Order, he has referred to any decision in respect of the Dankuni Unit, under which it has been held that the impugned amount of Rs.26,98,168.00 was recovered from that Unit and that a charge of fraud, collusion, misstatement or suppression was established in respect of the Dankuni Unit. In the absence of such evidence, the impugned Order disallowing the credit and imposing penalty and interest cannot be sustained. Hence, the impugned Order is set aside.
5. However, in the interest of justice, we remand the matter for fresh decision by the Adjudicating Commissioner. He shall give a reasonable opportunity of hearing to the Appellants and also make available necessary documentary evidence, if any, to show that the impugned amount has been recovered from the Dankuni Unit on account of fraud, collusion etc. as required under the cited Rule 7(1), before passing a fresh Order. The Appeal is allowed by way of remand in the above terms. The Cross Objection also stands disposed off.
Pronounced and dictated in the open court.
Sd/- Sd/-15.05.09
(S.S.KANG) (CHITTARANJAN SATAPATHY)
VICE-PRESIDENT TECHNICAL MEMBER
DUTTA/
3
EX.APP.EDM-365/05