) M/S. B.D. Casting Ltd vs Commr. Of Central Excise, Kolkata-Iv

(Arising out of the Order-in-Appeal No.127-128/KOL-IV/2014 dated-20/03/2014 passed by the Commissioner (Appeals), Central Excise, Kolkata-III)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER

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1. Whether Press Reporters may be allowed to see : 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 : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

1) M/s. B.D. Casting Ltd. 2) Sri Dilip Choraria

APPELLANT(S) VERSUS Commr. of Central Excise, Kolkata-IV

RESPONDENT(S) APPEARANCE

Sri S.P. Siddhanta, Consultant FOR APPELLANT(S) Sri K. Chowdhury, Supdt.(A.R.) FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING & DECISION : 19/06/2015

ORDER NO. FO/A/75424-25/15 Per DR.D.M. MISRA

These two applications are filed seeking waiver of pre-deposit of CENVAT Credit of Rs.5.99 Lakhs and equivalent amount of penalty imposed under Rule 15 (2) of the CENVAT Credit Rules and personal penalty of Rs.1.00 Lakh imposed on the Director under Rule 26 (1) of Central Excise, 2002.

2. The Ld. Consultant appearing for the applicant has submitted that the Ld. Commissioner (Appeals) has not decided the issue on merit but dismissed their appeals on the ground of non-compliance with the direction of pre-deposit of Rs.3.00 Lakhs (Appeal No. 75875/14) and Rs.50,000/- (Appeal No. 75876/2014). He submits that they have a strong case on merit since the inputs were purchased by them against the invoices issued by M/s. Saha Industries. He submits that they have received the goods from M/s. Saha Industries and accordingly, availed credit on the duty paid against input invoices by M/s. Saha Industries. He submits that they have a strong case on merit and prays that the matter may be remanded to the Ld. Commissioner (Appeals) for decision on merit.

3. Ld. A.R. for the Revenue fairly accepted that the issue has not been decided on merit. He has no objection in remanding the case to the Ld. Commissioner (Appeals) for decision on merit.

4. After hearing both sides for some time, I find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit, the appeals are taken up for disposal with the consent of both sides. I find that the Ld. Commissioner (Appeals) has not decided the issue on merit but dismissed the appeals on the ground of failure to report compliance under Section 35F of CEA, 1944. I find that the present issue rests on admissibility of CENVAT Credit on the input invoices issued by one M/s.Saha Industries. It is the claim of the appellant that they have duly paid the price and received the goods mentioned in the input invoices from M/s.Saha Industries. It is also their contention that in the event, demand notices were issued for recovery of CENVAT Credit, irregularly availed by M/s. Saha Industries, they cannot be held responsible in availing credit on the input invoices issued by M/s. Saha Industries. I am of the view that all these issues need to be addressed by the Ld. Commissioner (Appeals). In the result, the impugned order is set aside and the appeals are remanded to the Ld. Commissioner (Appeals) for deciding the issue afresh on merit without insisting for any pre-deposit. Needless to mention that reasonable opportunity of hearing be allowed to the appellant. All issues are kept open. Appeals are allowed by way of remand. S.P.s disposed off.

(Dictated and pronounced in the open Court) Sd/- 10/08/2015 (D.M. MISRA) MEMBER ( JUDICIAL)

k.b/-

3 Excise Appeal Nos. E/75875 & 75876/2014

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