M/S. Arya Steel Rolling (India) Ltd vs Commissioner Of Central Excise, ...

(Arising out Order-in-Appeal No. PII/AV/79/2010 dated 07.06.2010 passed by the Commissioner of Central Excise (Appeals), Pune)

For approval and signature: Honble Mr. S.S. Garg, Member (Judicial)

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 No 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?

M/s. Arya Steel Rolling (India) Ltd. Appellant

Vs.

Commissioner of Central Excise, Kolhapur Respondent

Appearance:

Shri J.N. Somaiya, Advocate for the appellant Shri Ajay Kumar, JC(AR) for the respondent

CORAM:

Honble Mr. S.S. Garg, Member (Judicial)

Date of hearing : 11.09.2015 Date of decision : 11.09.2015

O R D E R No:..

This appeal is directed against Order-in-Appeal No. PII/AV/79/2010 dated 07.06.2010 passed by the Commissioner of Central Excise (Appeals), Pune.

2. Briefly the facts are that the appellant M/s. Arya Steel Rolling (India) Ltd. are engaged in the manufacture of TMT bars falling under first schedule of Central Excise Tariff Act, 1985. Appellant availed Cenvat Credit of `9,87,158/- on the basis of original buyer copy of the Central Excise invoice and also availed credit of `33,830/- on the basis of Duplicate for Transporter copy of Central Excise invoice. They had also availed credit of `7,70,932/- on the electric motors on the basis of Xerox copy of Duplicate for Transporter copy of Central Excise invoice no. 347, 348 & 249 all dated 20.10.2007 issued by M/s. Jakson & Co. The appellant on instruction of Central Excise officers, who conducted the audit of their records, the appellant under bonafide belief had reversed the total credit of `17,91,920/- vide Entry no. 208/7.5.2009 of their input credit register. The appellant later on realised there was no necessity to reverse the Cenvat Credit and filed a refund claim of `17,91,920/-. Thereafter a show-cause notice dated 25.09.2009 calling upon them to show cause as to why the refund claim of `17,91,920/- should not be rejected. The Asst.Comm. vide his Order-in-Original dated 20.11.2009 though sanctioned the refund of Cenvat Credit of `10,11,988/- but still rejected the refund of Cenvat Credit of `7,70,932/-. The appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide Order-in-Appeal dated 07.06.2010 rejected the appeal and the appellant filed the present appeal before this Tribunal.

3. Ld. Counsel for the appellant submitted neither in the Order-in-Original nor Order-in-Appeal has raised any doubt about the vital facts that:-

a) The electric motors are actually received by them.

b) The said electric motors are duty paid

c) The said electric motors are being used by them in their factory.

d) They have made the full payment of the price and the taxes on the said electric motors to the supplier of the said electric motors.

He further submitted that the only reason for which credit availed on the electric motors is availment of said credit on the basis of photocopy of the duplicate for transporter copies of Central Excise invoices covering the said machine. He also submitted that as per the impugned order the photocopy of the Duplicate for Transporter copy of the Central Excise invoice is not the prescribed document to avail credit. He further submitted that the impugned order is contrary to the well settled principles laid down by the Bombay High Court in the case of Bombay Goods Transport Association vs. UOI 1995 (77) ELT 521 wherein the Hon'ble High Court has held in the absence of specified documents to avail credit, the credit can be availed on the basis of other documents evidencing payment of duty. He also submitted that following the Hon'ble High Court various benches of the Tribunal has allowed the credit on xerox copy of the documents but the ld. Comm. failed to consider the same.

4. Ld. Counsel for the appellant during the hearing of the appeal today produced before me original copy of Duplicate for Transporter copy of invoice and submitted that the matter may be remanded to the original Adjudicating Authority for verification of the same. Ld. AR does not have any objection for the same if the matter is remanded. The ld. Counsel for the applicant cited the decision in the case of Rama Silk Mills vs. CCE 2003 (159) ELT 379 wherein in para 5, the Tribunal has observed as under:-

5. In view of the fact that only xerox copies? of original invoices were produced before the lower authorities earlier and original copies have been shown only during hearing at the Tribunal and the same are seen to cover delivery of the inputs to the premises of the appellants, I remand the case to the original authorities for examining the original copies of the invoice and conduct other necessary inquiry as deemed fit and decide the case afresh in accordance with law after affording due opportunity to the appellants to present their case before him. The appeal is allowed by way of remand.

5. The present appeal is covered by the decision cited above and in view of the fact that now the appellant has produced the original copies of the invoices, I find it proper to remand the case to the Adjudicating Authority after setting aside the impugned order for verification of the same and thereafter decide the refund claim of the appellant in accordance with law after affording an opportunity of hearing to the appellant.

6. Appeal is allowed by way of remand.

(Operative part pronounced in Court)

(S.S. Garg) Member (Judicial)

//SR

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