M/S. Cabdury India Ltd vs C.C.E. & S.T. Indore

[Arising out of Order-in-Original No. IND-CEX-000-APP-434-2011 dated 16.11.2011 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Indore].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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?

M/s. Cabdury India Ltd. .Appellants

Vs.

C.C.E. & S.T. Indore .Respondent

Appearance:

Shri Dileep, Advocate for the Appellants

Shri G.R. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 01.06.2015

FINAL ORDER NO. 51772/2015-EX(SM)

Per Ashok Jindal:

The appellant has filed an application for Condonation of Delay of 66 days on the ground that the Counsel was assigned the job of filing the appeal before this Tribunal was having personal difficulties for seven months due to his family problems. Therefore, appeal could not be filed in time. Considered the reasons for causing the delay has been explained satisfactorily. Therefore, appeal is condoned for filing the appeal by allowing the application for condonation of delay.

2. The appellant has filed the appeal along with an application for Stay and a Miscellaneous Application for bringing additional facts on records. After hearing for some time I find that appeal itself can be disposed of at this stage. Therefore, with the consent of both the sides applications as well as appeal are taken up for final disposal.

3. It is the contention of the appellant that on the identical issue for the earlier period this Tribunal has remanded matter back to the Adjudicating authority vide order no.913/2011 dated 17.10.2011. Therefore, the matter was remanded back to the adjudicating authority to examine the evidence produced by the appellant that waste on which duty has been demanded is in nature of packing waste and general industrial waste on which Cenvat Credit was not taken. On going through the order of this Tribunal in appellants own case for the earlier period dated 17.10.2011 wherein this Tribunal has observed in para 1 & 2 as under:

 For the reasons recorded below, we waive pre-deposit of Rs.11,64,959/- together with interest and penalty of the same amount plus an additional penalty of Rs.4 lakhs and proceed to decide the appeal at this stage with the consent of both the sides as the order records that no evidence was filed by the appellants in support of their claim. The Department is of the view that it is clear from the order that no evidence has been filed by the assessee on the invoices which support the stand that the waste on which duty has been demanded is in the nature of packing material which was never used in the manufacture of final product and general industrial waste and credit was not taken on either kind of waste.

2. We find that the Commissioner (Appeals) has held in para 5.5 of the impugned order that the assessee has failed to establish that the credit was not pertaining to cenvatable capital goods on which cenvat credit appeared to be taken because they failed to produce any substantial documents/records, that may be in support of the contention of the appellant. Attention was also drawn by the learned Counsel for the appellants to the written submission filed by them on 2.09.2010 (the impugned order has been passed on 20.10.2010) to which they have endorsed copies of invoices to establish their case that the nature of the waste cleared without payment of duty was packing material waste and general industrial waste. These documents have not been considered by the lower appellate authority and are required to be considered for the purpose of determining whether assessees are liable to pay the duty. We, therefore, set aside the impugned order and remit the case to the adjudicating authority for fresh decision in the light of the evidence produced by the assessee that the waste on which duty has been demanded is in the nature of packing waste and general industrial waste on which cenvat credit was not taken. Fresh order shall be passed after extending a reasonable opportunity of hearing to the appellants.

4. In the light of the above decisions I set aside the impugned order and remand matter back to the adjudicating authority for fresh decision in the light of the evidence produced by the appellant that waste on which duty has been demanded is in nature of packing waste and general industrial waste on which Cenvat Credit has been taken.

5. With these terms, appeal as well as stay application and Miscellaneous application are disposed of.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/1108/2012-EX(SM)