M/S. Idmc Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-COMMR-A-/246-248/VDR-I/2010 dated 16.09.2010, passed by Commissioner (Appeals) Central Excise, & S.T., Vadodara)

M/s. IDMC Limited : Appellant (s) Shri Arun Godavat

VERSUS

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

Represented by :

For Appellant (s) : Shri Dhaval K. Shah, Advocate For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Honble 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?

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, Honble Member (Judicial)

Date of Hearing / Decision : 29.05.2015

ORDER No. A/10726-10728/2015 Dated 29.05.2015

Per : Mr. P.K. Das;

These appeals are arising out of a common order and therefore, all are taken up together for disposal.

2. The appellants are engaged in the manufacture of excisable goods falling under Chapter 39 of the Schedule to the Central Excise Tariff Act, 1985. Show cause notices dated 16.04.2008 and 11.02.2008 were issued proposing denial of CENVAT credit alongwith interest and to impose penalty on the appellant/assessee and Shri Arun Godawat, Assistant Manager of the assessee. In the show cause notice dated 11.02.2008, the learned Advocate fairly submits that they are not contesting the demand of duty which they have already paid. It is contended that the credit was not utilised and therefore, interest demand and penalty should be set-aside. In the show cause notice dated 16.4.2008, learned Advocate submits that they are contesting denial of credit of Rs. 2,38,338 and Rs. 5,322/-, interest and penalty. He submits that they have made elaborate submission before the Commissioner (Appeals) that the amounts were not utilised. It was also contended that Shri Arun Godawat is an employee of the Company and imposition of penalty is not warranted.

3. Learned Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals).

4. On perusal of the impugned order, I find that the Commissioner (Appeals) observed that there was no challenge to the wrong availment of the CENVAT credit by the appellant. Therefore, the grounds advanced by the appellant in their appeal become an additional submission. It is further observed that the appellant have failed to satisfy the authority as to why the additional submissions should be entertained, as required under Rule 5 of the Central Excise (Appeal) Rules, 2001. Learned Advocate submits that they have taken the issue of non-utilisation of CENVAT credit before the adjudicating authority. In my considered view, the Commissioner (Appeals) should have examined the additional grounds in the memorandum of appeal placed before him, in the interest of justice.

5. In view of the above discussions, the appeals are remanded to the Commissioner (Appeals) to decide afresh, after considering the submissions of the appellant in all the appeals. The Commissioner (Appeals) shall give proper opportunity of hearing before passing order.

6. All the appeals are allowed by way of remand.

(Order dictated and pronounced in the Court)

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

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