Custom, Excise & Service Tax Tribunal
M/S S.V. Business Pvt. Ltd vs Commissioner Of Central Excise, ... on 23 April, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/391/10 (Arising out of Order-in-Appeal No. SB/153/Th-I/09 dated 10.12.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai-I). For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s S.V. Business Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Thane-I Respondent Appearance: Shri A.V. Naik, Advocate for Appellant Shri H.M. Dixit, AC (AR) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 23.04.2015 Date of Decision: 23.04.2015 ORDER NO. Per: Shri Anil Choudhary
The appellant have preferred this appeal being aggrieved by Order-in-Appeal No. SB/153/Th-I/09 dated 10.12.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai-I.
2. The brief facts of the case are that the assessee appellant is a manufacturer-exporter. For the purpose of manufacturing fabrics, they purchased yarn. Under the provisions of Notification No. 6/2002-CE(NT), the appellants have taken CENVAT Credit on the yarn. The appellant have maintained a register as required under the Act and Rules for availing deemed credit. The appellant being an exporter could not utilized the credit so availed and accordingly preferred refund vide application dated 17.3.2004 addressed to the Dy. Commissioner of Central Excise claiming refund of the un-utilized balance as on 31.3.2003 being Rs.10,36,529/- (BED) and Rs.4,99,357/- (AED) totaling Rs.15,35,886/-. From a copy of acknowledgement of refund application, it is evident that the appellant have filed refund claim in Form-A along with supporting challans, copy of ARE-1, copy of invoices, copy of shipping bills, copy of Bills of Lading and final proof of export along with a refund declaration. A show-cause notice was issued dated 17.6.2004 directing the appellant to file reply by 25.6.2004 specifying that the refund claim filed is not proper inasmuch as there is no provision under Rule 5 of the Cenvat Credit Rules for granting refund of such availed credit in the register. The appellant was further needs to produce copy of all the documents upon which they intend to rely. However, no reply to show-cause notice was filed nor the appellant appeared before the authority on 26.6.2004. Thereafter in the course of personal hearing, the appellant appeared on 19.12.2007 and said that the credit could not utilized as the products were exported. It was further stated by the appellant that in fire on 11.5.2006, these documents were destroyed and accordingly, they could not substantiate the claim. The Dy. Commissioner adjudicated the refund claim rejecting the claim observing that in support of the claim, the appellant have enclosed just Xerox copy of their Deemed Credit Register page no. 44 of the same for the period March, 03 indicating therein a closing balance of deemed credit as on 31.3.2003. They have not enclosed any supporting documents viz, input invoices to substantiate the above accumulation of deemed credit. It was further observed that appellant have not remitted any documents towards proof of export under Bond. It was further observed that in respect of show-cause notice, which is served on appellant in June, 2004, the appellant has failed to substantiate their claim for no ostensible reason and accordingly, the said refund claim was rejected.
2.1 Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) have observed that appeal is time barred as the same was filed on 14.5.2008. According to the appellant, the said finding is wrong as the limitation for filing appeal was expiring on 2.5.2008 and the appeal was filed on 1.5.2008, which is apparent from the copy of appeal filed along with the appeal. In view of the fact that the appeal has been filed as per acknowledgement on 1.5.2008, I find that this is a mistake of fact and accordingly, I hold that the appeal is filed in time. The Commissioner (Appeals) upholding the Order-in-Original have observed that the appellant has taken credit of Rs.13,15,342/- on the basis of letter dated 31.3.2003 without any clearance of final product as required under the said Notification. Accordingly, it was observed that the credit taken on the basis of letter and under the document of which refund cannot be taken. The refund was rightly rejected. It was further observed that the said letter dated 31.3.2003 was not produced before the first appellate authority.
2.2 Being aggrieved, the appellant is before this Tribunal.
3. Heard both the parties.
4. On perusal of the Order-in-Original, I find that the adjudicating authority has observed that the appellant have not filed proof of export and/or removal of documents. Further, I find that the Revenue has not objected to the taking of credit at any stage save and except at the refund stage. On perusal of the refund application, it appears that the appellant have furnished sufficient evidence for proof of export as noticed above including the role of goods under export, Form ARE-1. Further, I find that the adjudicating authority has not justified in saying that the appellant have not filed sufficient document in proof for claim of refund save and except the taking of credit on 31.3.2003 vide Entry No. 389 as observed by the learned Commissioner (Appeals). Thus, I find that the matter needs to be re-considered in true spirit. Thus, I remand the matter back to the file of the adjudicating authority, who shall decide the claim after providing a reasonable opportunity of the hearing to the appellant. The appellant is also directed to seek date of hearing within a period of three months from the date of receipt of this order. Thus, the appeal is allowed by way of remand.
(Dictated and pronounced in Court) (Anil Choudhary) Member (Judicial) Sinha 4