M/S Adani Gas Limited vs Commissioner, Central Excise & Service ...

Appeal No.ST/76/2012-DB [Arising out of OIA No.283-2011-STC-KANPAZHAKAN-COMMR-A-AHD-, dt.09.09.2011, passed by Commissioner (Appeals), Central Excise & Service Tax, Ahmedabad]

M/s Adani Gas Limited Appellant

Vs

Commissioner, Central Excise & Service Tax, Ahmedabad Respondent

Represented by:

For Appellant: Shri Akhil Seerazi, Advocate For Respondent: Shri K. Sivakumar, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)

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) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)

Date of Hearing/Decision: 08.04.2015

Order No. A/10309 / 2015, dt.08.04.2015

Per: P.K. Das

1. After hearing both the sides and on perusal of the records, we find that by the impugned order, the Commissioner (Appeals) remanded the matter to the original authority with certain observations. The main contention of the learned Advocate on behalf of the Appellant is that the observation in Para 6 of the impugned order is not correct which is reproduced below:-

6. I find that the Appellants have not declared any details regarding CENVAT Credit taken and utilized in their ST-3 returns during the period in dispute. This is a major condition laid down under CENVAT Credit Rules, 2004. Hence, the Appellants have rightly been disallowed CENVAT Credit of Service Tax as requested by them.

2. By letter dt.18.02.2011, the Appellant requested to allow Service Tax credit under Input Service Distributor in the name of M/s Adani Gas Ltd; in view of de-merger of city gas distributor business from M/s Adani Energy Ltd to M/s Adani Gas Ltd. The learned Advocate submits that in this case, M/s Adani Energy Ltd changed the ownership in favour of the present Appellant M/s Adani Gas Ltd. So, they are eligible to avail CENVAT Credit by transfer of CENVAT Credit under Rule 10 of CENVAT Credit Rules, 2004. His submission is that the M/s Adani Energy Ltd applied for Centralised Registration in 2005 under Central Excise Rules and it was issued in 2009. Therefore, they are eligible to avail CENVAT Credit on ISD and distribute the same as per Rules. The earned Authorised Representative for the Revenue submits that this issue was not raised before Commissioner (Appeals). In our considered view, it is a factual dispute and as the Commissioner (Appeals) remanded the matter, the Adjudicating authority should have also examined the facts in Para 6 of the impugned order.

3. In view of the above discussion, we modify the impugned order in so far as the Adjudicating authority would also consider the submissions of the Appellant regarding the CENVAT Credit taken and utilized in their ST-3 returns as mentioned in Para 6 of the impugned order.

5. The appeal filed by the Appellant is disposed of with the above observations.

(Dictated & Pronounced in Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial)

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