Gsc Glass Ltd vs Cce, Noida

(Arising out of OIA No.88/ST/Appl./Noida/2013 dt.26.4.13 passed by the CCE (Appeals), Noida)

Date of Hearing/Decision: 12.05.2015

For Approval & signature:

Honble Mr.Ashok Jindal, Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes

GSC Glass Ltd. Appellant

Vs.

CCE, Noida Respondent

Present for the Appellant: Shri Naveen Mullick, Advocate

Present for the Respondent: Shri G.R.Singh, AR

Coram: Honble Mr.Ashok Jindal, Member (Judicial)

FINAL ORDER NO.51639/2015

PER: ASHOK JINDAL

The appellant is in appeal against the impugned order denying the input service credit on transit insurance to the appellant on the glass/glass articles sold by them to their customers.

2. Heard the parties.

3. The contention of the learned Counsel for the appellant is that the items of glass and glass articles are delicate items and for safety of the goods to reach the customers, they have taken transit insurance. Therefore, this is integral part of their business activity and they are entitled to input service credit. In alternate, he submits that in some cases, they have effected the sale on FOR basis. For that, they are entitled to take credit on transit insurance. He submits that the credit sought to be denied for the period from February,2009 to July, 2011 whereas the audit was conducted during the period February, 2008 to January,2009. The show cause notice was issued on 21.12.2011 by invoking extended period of limitation. Therefore, some of the period is barred by limitation.

4. On the other hand, learned AR reiterates the finding in the impugned order and submits that the sale has been effected by the appellant at the factory gate. Therefore, they are not entitled to take credit on transit insurance.

5. After considering the submissions made by both sides, I find that there is dispute on the facts whether the sale has been effected on FOR basis or at factory gate. Therefore, this fact has to be ascertained by the adjudicating authority on production of documents in support of the claim by the appellant. If the sale is effected on FOR basis, the appellant is entitled to take credit on transit insurance and if the appellant is failed to prove the same with support documents that the sale is made on FOR basis then the appellant is not entitled to take credit.

6. Further in this case, an audit took place during the period from February,2008 to January, 2009 and the show cause notice was issued to the appellant on 21.12.2011 by invoking the extended period of limitation. On perusal of the record, I find that the knowledge of taking re-credit and reversal of credit was known to the department on 30.10.2010 itself. Therefore, in the circumstances, I hold that the extended period of limitation is not applicable in this case. As the matter needs examination by the adjudicating authority, I set the impugned order and remand the matter back to the adjudicating authority for quantification purpose only. The adjudicating authority after verifying the records of the appellant shall pass an order in accordance with law after affording a reasonable opportunity of hearing to present their case.

(Dictated & Pronounced in the open court)

(ASHOK JINDAL)

MEMBER (JUDICIAL)

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