M/S. Dantal Hydraulics Pvt. Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-In-Appeal No. 598/2013-CE dated 08/11/2013 passed by Commissioner of Central Excise, BANGALORE-I( Appeal) ]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters 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 the 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

M/s. Dantal Hydraulics Pvt. Ltd. Plot No.221, 8th Main, 2nd Cross, 3rd Pahse, Peenya Industrial Area, BANGALORE  560 058. KARNATAKA Appellant(s)

Versus

Commissioner of Central Excise, Service Tax And Customs Bangalore-II Commissionerate PB 5400 CR BUIDING, QUEENS ROAD, BANGALORE  560 001. KARNATAKA

Respondent(s)

Appearance:

Mr. Naresh Kumar Malhotra, Director of the Company For the Appellant

Mr. Mohd. Yusuf, AC (AR)

For the Respondent

Date of Hearing: 02/02/2015

Date of Decision: 02/02/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. : 20194 / 2015

Per : ARCHANA WADHWA

After allowing the stay petition, as the appellant have already deposited the demanded amount of Rs.74,147/-, I proceed to decide the appeal itself as the issue is covered by the precedent decision of the Tribunal.

2. As per facts on records, the appellant imported hydraulics kit and valves through courier services. Inasmuch as there were other appellants who imported the same items through the same courier, a common bill of entry was filed by the courier company and on the basis of the photo copy provided by the courier company, the appellant availed the CENVAT credit.

3. The Revenues sole objection is that such photocopy of a common bill of entry filed by the courier company cannot be considered to be a proper document for the purpose of availment of credit. Accordingly, by way of issuance of show-cause notice dated 27.1.2012, the credit availed during the period May 2008 to October 2009 was sought to be denied to the appellant. The said show-cause notice culminated into an impugned order passed by the original adjudicating authority and upheld by Commissioner (A).

3.1 Hence the present appeal.

4. It is seen that the issue is no more res integra and stands decided by the Tribunal in the case of Commissioner of Central Excise, Lucknow vs. Fusion Electronics (P) Ltd.: 2011 (264) E.L.T. 513 (Tri.-Del.). It stands held that the provision of customs procedure Rules allowed courier agency to file a common bill of entry for several imports. As each of them cannot be given original copy, availment of credit on the basis of the photocopies of such bill of entry in the name of the importer is proper and credit has to be allowed.

4.1 It is seen that when the said decision of the Tribunal was placed before the Commissioner (A), he did not distinguish the same from the facts of the present case but simply observed that there was a Boards Circular No.31/2007 (Customs) dated 29.8.2007, which was not considered by the Tribunal while laying down the law. I find the above observation of the Commissioner (A) is against the settled principles of law. The decisions of the Tribunal are binding on Commissioner (A) and he cannot choose to ignore the same by giving preference to the Boards circular. The appellate authority, who is a senior officer of the Department, is expected to be aware of the judicial hierarchy system and his legal obligation to follow the Tribunals decision, unless the same are set aside by the higher Courts. In any case, I find that even the Boards Circular referred to by the Commissioner (A) and adopted by him for denying the credit, is also not on the subject. The same is a general circular laying down that the credit has to be allowed on the basis of bills of entry. There is no reference to the common bills of entries required to be filed by the courier services in respect of various imports by various importers.

5. Having expressed my anguish as also on the fact that the appellant has deposited the confirmed duty, I set aside the impugned order and allow the appeal with consequential relief. Stay petition as also appeal gets disposed for in above manner

(Order pronounced and dictated in open court)

ARCHANA WADHWA JUDICIAL MEMBER rv

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