Ashu Organics (I) P. Ltd vs Commissioner Of Central Excise, Thane I

(Arising out Order-in-Appeal No. SB/271/TH-I/10 dated 10.12.2010, SB/234 to 238/TH.1/10 & BR(157)/TH-I/2012 dated 11.03.2013 passed by the Commissioner of Central Excise (Appeals), Mumbai I)

For approval and signature: Honble Mr. P.K. Jain, Member (Technical)

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 Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Ashu Organics (I) P. Ltd. Appellant

Vs.

Commissioner of Central Excise, Thane I Respondent

Appearance:

Shri R.V. Shetty, Advocate for the appellant Shri Ashutosh Nath, AC (AR) for the respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical)

Date of hearing : 13.02.2015 Date of decision : 13.02.2015

O R D E R No:..

Per: P.K. Jain:

The brief facts of the case are that the appellant is a 100% EOU. Appellant is exporting organic chemicals. Appellant was also clearing the same to DTA. For purposes of manufacturing the said items, appellant was availing credit on the inputs and input services. Appellant used partially credit so availed for clearance of the goods to DTA clearances. However, since they were not able to utilise the credit fully, they were filing refund claim under Rule 5 of CENVAT Credit Rules, 2004.

2. For the period October 2007 to March 2008, appellant filed a refund claim under Rule 5 which was processed and sanctioned by the original authority vide No. R-456/09-10 dated 12.09.2008. The same was reviewed by the Commissioner and appeal was filed before Commissioner (Appeals). Commissioner (Appeals) in turn allowed the appeal of the Revenue vide Order-in-Appeal No. SB/271/TH-I/10 dated 10.12.2010. In the meantime, a protective demand was issued which was confirmed consequent to the order of the Commissioner (Appeals). Appeal against the confirmation of demand was dismissed by Commissioner (Appeals) vide Order no. BR(157)/TH-I/2012 dated 11.03.2013. Appellants are in appeal against both the orders of Commissioner (Appeals).

3. Similarly, appellant filed five refund claims for the period July 2009 to November 2009 which were processed and sanctioned by the original authority vide order no. R-998 dated 03.12.2009, R-1234/09-10 dated 30.12.2009, R-1341/09-10 dated 20.01.2010, R-1462/09-10 dated 15.02.2010 and R-1602/09-10 dated 15.03.2010.

4. Revenue filed appeals against these orders before Commissioner (Appeals). Revenues appeals were allowed by the Commissioner (Appeals) vide order no. SB/234-238/TH-I/10 dated 18.11.2010. In the meantime, the revenue has issued a protective demand which was confirmed by the original authority vide order no. 24, 25, 26, 27, 28/10-11 dated 21.02.2011. Appellant filed appeal against the same before the Commissioner (Appeals) which was dismissed by the Commissioner (Appeals) vide order no. BR/225-229/TH-I/2012 dated 07.10.2012. Appellant has filed appeals against both set of orders of the Commissioner (Appeals).

5. Heard both sides and perused the record.

6. Rule 5 of CENVAT Credit Rules, 2004 provides for refund of credit on input/input services which are used in the manufacture of final product which is cleared for export under bond or letter of undertaking, if the manufacturer of such goods is not able to utilise the said credit for DTA clearance or payment of service tax on output services, the refund is subject to such safeguards, conditions and limitation as may be specified. It is seen from the orders of the original authority that the original authority has not gone into the question of quantum of goods imported and details of the input used in the manufacturing process of goods so exported and the credit involved therein and other conditions prescribed in Rules and the Notification issued under the said Rule. Instead the original authority has only seen how much is the credit availed during the period and how much of the said credit is utilised for DTA clearances and sanctioned the refund claim for the unutilised amount. The Commissioner (Appeals) in his impugned orders has observed the same and set aside the order and the revenues appeals were allowed. The first appellate authority has set aside the Order-in Original without going into the details or determining how much refund the appellant would be entitled to. The other orders of the original authority as well as first appellate authority are consequent to earlier orders. In view of these facts, it is absolutely necessary to re-examine the whole matter afresh and examine and determine the quantum of refund claim that appellant would be entitled to and thereafter decide about the recovery of the excess amount paid if any.

7. Under the circumstances, I set aside all the orders and matter is remanded to the original authority to examine all claims afresh in accordance with law. Appellants are directed to produce all the documents without any delay within a period of two months from today. Thereafter Adjudicating Authority will examine all these documents and in case authority requires any further information or documents like chartered engineer certificate indicating input output ratio or would like any other details, the same will be provided by the appellant without any delay or seeking adjournment. After receiving the information required, following the principles of natural justice, the original authority will decide all the claims afresh.

8. Appeals are disposed of by way of remand keeping all the issues open in above terms.

(Operative part pronounced in Court)

(P.K. Jain) Member (Technical)

//SR

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