Commissioner, Central Excise & Service ... vs M/S Sanskar Processors Pvt.Ltd

Appeal No.E/1357/2008-SM [Arising out of OIA No.RKA/569/SRT-I/2008, dt.31.07.2008, passed by Commissioner (Appeals), Central Excise & Service Tax, Surat]

Commissioner, Central Excise & Service Tax, Surat-I Appellant

Vs

M/s Sanskar Processors Pvt.Ltd. Respondent

Represented by:

For Appellant: Shri T.K. Sikdar, Authorised Representative For Respondent: Shri Mukund Chauhan, Chartered Accountant.

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

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

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)

Date of Hearing/Decision:17.04.2015

Order No. A/10339 / 2015, dt.17.04.2015

Per: P.K. Das

1. The Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals), where the Adjudication order was set aside.

2. The learned Counsel on behalf of the Respondent raised a preliminary objection in so far as that the Revenue wrongly mentioned the Respondents name as Shankar Processors Private Limited instead of Sanskar Processors Private Limited. The learned Authorised Representative appearing on behalf of the Revenue submits that they may be granted liberty to correct cause title. As the matter is old one, I direct the Registry to amend the cause title on the appeal filed by the Revenue in so far as the Respondents name would be Sanskar Processors Private Limited instead of Shankar Processors Private Limited in further proceedings.

3. After hearing both the sides and on perusal of the records, I find that the Respondents were engaged in the manufacture of Man Made Processed Fabrics. The Respondent availed CENVAT Credit on the capital goods during the period 2004-2005. They have utilized the 50% of credit paid on the capital goods in 2004-2005. The balance 50% of the credit was availed in April-May, 2005. It has been alleged that CENVAT Credit used in the capital goods of the balance 50% in April-May 2005 would be denied on the ground that the Respondent opted for exemption during 09.07.2004 to 31.05.2005. They opted to avail exemption on clearance of the goods without payment of duty. The Adjudicating authority denied the CENVAT Credit of the balance 50% of credit alongwith interest and imposed penalty of equal amount of the duty utilized in April-May 2005. The Commissioner (Appeals) set aside the Adjudication order.

4. It is seen from the impugned order passed by the Commissioner (Appeals) that the Tribunal on the identical issue by Final Order No.A/3025/WZB/AHD/2007, dt.30.11.2007 in the Respondents own case, allowed 50% of the credit in respect of first part. The Commissioner (Appeals), following the decision of the Tribunal by Final order dt.30.11.2007, in respect of 1st part on the same capital goods, allowed the appeal and set aside the Adjudication order.

5. The relevant portion of the findings of the Commissioner (Appeals) are reproduced below:-

2. The Appellant Company are manufacturer of processed fabrics starting from grey fabrics. They took credit of Central Excise duty paid on capital goods in 2004-05 upto 50% of the duty paid on capital goods (1st part) received in 2004-05. Balance 50% of the duty paid amounting to Rs.16,40,952/- was taken as Credit in April-May 2005 (2nd part). The Central Excise duty on textile was changed w.e.f. 09.07.2004 wherein option was given to pay duty and avail CENVAT on inputs or clear goods without payment of duty foregoing the input credit. The provisions provide for simultaneous manufacture and clearance at Nil rate of duty (without input credit) and at duty with input credit. The applicants opted for exemption during 09.07.2004 to 31.05.2005 w.e.f. June 2005 they are availing the facility of simultaneous clearances on duty and without duty.

3. In the impugned Order-in-Original, it has been held that no Capital Goods Credit (2nd part) can be availed as the Appellant are engaged in the exclusive manufacture of exempted goods.

4. The appellants have produced before me an Order No.A/3025/WZB/AHD/07, dt.30.11.2007 of the Honble CESTAT, in their own case. In the order d.30.11.2007, the Honble CESTAT has decided a similar case relating to 1st part of the Capital Goods Credit availed by the appellant, in their favour.

5. The CESTAT Order dt.30.11.2007 is directly applicable to the case before me. Following the principle of judicial discipline, I have no choice but to allow the appeal. The Order-in-Original is set aside in accordance with the ratio of the CESTAT order referred above.

6. I find that the Commissioner (Appeals) passed the order following the decision of the Tribunal in the Respondents own case. Hence, I do not find any reason to interfere the order of Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.

(Dictated & Pronounced in Court)

(P.K. Das) Member (Judicial)

cbb

4