M/S. Arvind Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-327/2009-AHD-II-CE/CMC/COMMR-A-/AHD dated 22.9.2009 and OIA-271/2010-AHD-II-CE/CMC/COMMR-A-/AHD dated 30.11.2010, Passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad)

M/s. Arvind Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri S.J. Vyas, Advocate For Respondent (s) : Shri Alok Srivastava, A.R.

For approval and signature :

Mr. P.K. Das, Hon'ble 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 should be released under Rule 27 of 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 Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 13.02.2015

ORDER No. A/10141-10142/2015 Dated 13.02.2015

Per : Mr. P.K. Das;

Common issue is involved in these appeals and therefore, both are taken up together for disposal.

2. The relevant facts, in brief, are that the appellants are engaged in the manufacture of Cotton Yarn/ Denim fabrics, classifiable under Chapter 52, 54 and 55 of the schedule of the Central Excise Tariff Act, 1985. The appellant filed a refund claim of unutilised balance of CENVAT credit of Rs. 47,43,302/- for the period from July 2008 to September 2008 on 24.3.2009, under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 4/2006 and 5/2006-CE (NT) dated 14.03.2006 for inputs used in the manufacture of final products cleared for export under bond or letter of undertaking.

3. By Order-in-Original No. 115/Refund/2009 dated 26.6.2009, the Assistant Commissioner, Central Excise, sanctioned the refund claim and also paid to them. Revenue filed appeal before the Commissioner (Appeals). By Order-in-Appeal dated 22.09.2009, Commissioner (Appeals) set-aside the adjudication order and allowed the appeal filed by the Revenue by way of remand to the adjudicating authority and directed him to pass a speaking order. The appellant filed appeal No. E/1717/2009 before the Tribunal against the said order of the Commissioner (Appeals), which is listed today. In the mean time, a show cause notice dated 08.10.2009 was issued by the Assistant Commissioner, Central Excise to show cause as to why the amount so refunded erroneously should not be demanded and recovered from them under Section 11A of the Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004 along with interest. By adjudication order dated 30.7.2010, the Assistant Commissioner, in terms of the remand order of the Commissioner (Appeals) and confirmed the demand of Rs. 47,43,302/- along with interest. The Commissioner (Appeals) has rejected the appeal filed by the appellant and Appeal No. E/92/2011, being listed today.

4. Learned Advocate for the appellant submits that the earlier remand order was challenged by the appellant before the Tribunal in Appeal No. E/1717/2009, which is also listed today. He submits that appellant also filed another appeal being appeal No. E/92/2011 against the subsequent order. He fairly submits that the first appeal may be dismissed as infructuous.

5. Learned Advocate further submits that they have filed a refund claim in a proper format and given intimation by their letter dated 28.6.2007 to the Assistant Commissioner Central Excise, Division-II, Ahmedabad. Board Circular No. 845/3/2007-CX dated 01.2.2007 clarified that the textile manufacturers/ processors have to use common inputs which are used in a continuous manner and it may not be practically possible to segregate and store inputs like dyes and chemicals separately or maintain separate accounts. In such cases, in order to facilitate simultaneous availment of the two notifications, such manufacturers may be advised not to take credit initially and subsequently take only proportionate input credit on inputs used in the manufacture of finished goods cleared by them on payment of duty. They were directed to maintain accounts for the purpose of verification by the Central Excise officers. He submits that by letter dated 03.10.2008 they have submitted the statement showing inputs received, removal of finished goods along with copy of RG23A part II etc. He submits that both the authorities below have not appreciated the documents and passed the order without considering their records.

6. Learned Authorised Representative for the Revenue submits that the appellant have not produced the documents in respect of utilisation of inputs in the manufacture of exported goods. He reiterates the findings of the Commissioner (Appeals).

7. After hearing both the sides and on perusal of the records, I find from the impugned order that Commissioner (Appeals) observed that the appellant has exported the goods and they are entitled for the refund of the CENVAT credit on the inputs used in the manufacture of export goods but for the said purpose, they have to establish the quantity gone into the manufacture of export goods and the CENVAT credit availed by them on the said inputs. It is further observed that the appellant failed to establish from the record as well as during the personal hearing that the amount in respect of which refund is claimed by them as the amount of CENVAT credit availed by them on the inputs, which were used in the manufacture of said exported goods during the period August to September 2008. The adjudicating authority observed that earlier adjudication order has not given findings on various issues. In my considered view, the findings of the adjudicating authority has acted as an appellate authority against earlier adjudication order, which is not permissible under the law. It is clear from the records that the appellant had submitted all the documents and the statements before the lower authorities, which were not looked into by the authorities below. So, the findings of the lower authorities cannot sustain. The adjudicating authority is required to examine the documents placed by the appellant.

8. In view of the above discussion, the impugned orders in Appeal No. E/92/2011 is set-aside and the matter is remanded to the adjudicating authority to examine the documents placed by the appellant. Needless to say that the adjudicating authority shall give proper opportunity of hearing before the decision. Appeal No. E/1717/2009 is dismissed as infructuous.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

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