M/S. Hitesh Plastic Pvt. Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-KRS/443/VAPI/2008 dated 31.12.2008 Passed by Commissioner (Appeals) Central Excise & Customs, Vapi.)

M/s. Hitesh Plastic Pvt. Limited : Appellant (s)

vs.

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

Represented by :

For Assessee : Shri Uday B. Kadu, Advocate

For Revenue : Shri J .Nair, 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 : 05.01.2015

ORDER No. A/10009/2015 Dated 05.01.2015

Per : Mr. P.K. Das;

The issue involved is in this case that whether the cenvat credit is available equal to Additional duty paid under Section 3 of the Customs Tariff Act, 1975 or equal to 50% of the Additional Duty leviable, when the supplier of the goods (100%) availed exemption of 50% of the duty payable in terms of Notification No. 2/95-CE dated 04.1.1995.

2. Heard both sides and perused the records.

3. Learned Advocate on behalf of the appellant submits that the issue has already been decided by the Larger Bench of Tribunal in the case of Vikram Ispat - 2000 (120) ELT 800 (Tri. LB) in their favour. He submits that Commissioner (Appeals) erroneously proceeded on the basis of stay order in the case of Alpha Transformers Limited - 2002 (142) ELT 251. He fairly submits that the Tribunal, in the case of Alpha Transformers Limited vide final order No. A-876/Kol/2002 dated 06.8.2002 remanded the matter to the Commissioner (Appeals) to decide afresh, after considering the decision of the Larger Bench of the Tribunal. He further submits that both the lower authorities had not considered that the demand is barred by limitation.

4. On the other hand, the learned Authorised Representative for the Revenue mentions that in the facts of the present case the Larger Bench decision is not applicable. In my considered view, it would be proper that the matter should be examined on the facts of the case, by the adjudicating authority in the light of Larger Bench decision, including the issue of demand is barred by limitation.

5. In view of the above discussion, the impugned order is set-aside and matter is remanded to the adjudicating authority to decide afresh, after considering the submissions of the appellant, in accordance with laws. Needless to say that the adjudicating authority shall give proper opportunity of hearing before passing order. Appeal is allowed by way of remand.

(Dictated and pronounced in the Court)

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

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