M/S Indo Count Industries Ltd vs Cce, Kolhapur

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. E/928/09

(Arising out of Order-in-Appeal No. PII/PAP/122/2009 dated 10.06.2009 passed by the Commissioner of Central Excise (Appeals) Pune-II.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

M/s Indo Count Industries Ltd.

: Appellant Versus

CCE, Kolhapur : Respondent

Appearance Shri V.B. Gaikwad, Advocate : For Appellant Shri Sanjay Hasija, Supdt. (A.R.) : For Respondent

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 30.04.2015 Date of Decision: 30.04.2015

ORDER NO.......................................................

Per: Anil Choudhary:

The appellant M/s Indo Count Industries Ltd. is in appeal against the Order-in-Appeal No. PII/PAP/122/2009 dated 10.06.2009 passed by the Commissioner of Central Excise (Appeals) Pune-II.

2. The brief facts are that the appellant is engaged in the manufacture of electronic goods namely Televisions and Television assemblies was falling under Chapter 85 of the Schedule to the Central Excise Tariff Act, 1985. And show-cause notice dated 2/1/08 was issued alleging that the appellant availed CENVAT credit of Special Additional Duty (SAD) on the strength of supplementary invoices issued by M/s MIRC Electronics Limited and the said credit was not available to the appellant in view of the provisions contained in Rule 9(1)(b) read with Rule 14 of CENVAT Credit Rules, 2004 as the duty was paid by M/s MIRC, after detection of the case for non levy or short Levy, by reason of fraud, collusion or wilful mis-statement or suppression of facts etc. inasmuch as the raw materials were cleared by M/s MIRC as such under Rule 3(5) of the Rules without payment of duty. Based on the aforementioned facts the appellant was directed to show-cause as to why an amount of Rs. 15,65,743/ towards wrong availment of CENVAT credit of SAD @ 4% should not be demanded and recovered under Section 11A of the Central Excise Act read with Rule 14 of the CENVAT Credit Rules along with interest and further why not penalty be imposed under Rule 15 read with Section 11AC of the Act and the show-cause was adjudicated and the demand proposed in the show-cause notice was confirmed along with interest, besides imposing equal penalty by the adjudicating authority holding that the supplementary invoices issued by M/s MIRC are not valid documents to avail CENVAT credit in terms of provisions of Rule 9(1)(b). Being aggrieved the appellant preferred appeal before the Commissioner (Appeals).

3. Vide the impugned order the learned Commissioner (appeals) noted the fact that M/s MIRC failed to pay the SAD at the time of removal of the goods to the appellant and it was only after the investigations are undertaken by the Revenue that M/s MIRC had deposited the same. Accordingly the demand of duty was confirmed. So far as penalty is concerned, in view of the fact that the appellant had taken credit on the basis of supplementary invoices and in absence of any evidence that the appellant has also paid and had no role in the alleged omission by M/s MIRC, penalty was set aside. Being aggrieved the appellant is before this Tribunal.

4. The Counsel for the appellant states that the dispute is no longer res integra as for the same matter, appeal have been allowed in the case of Mirc Electronics, Shri Manish K. Desai, Shri Janarthanam Remesh Vs. Commissioner of Central Excise, Thane-I, by this Tribunal vide order dated 20th January, 2015 in appeal No. E/1351, 1352 & 1353/2007  MUM reported at 2015 (4) TMI 419  CESTAT Mumbai. The Tribunal in para-4.2 of the order have held as follows:

4.2. We find that the appellants had not taken or utilized CENVAT credit wrongly to attract the provisions of rules 14 or 15 of CCR invoked by the Commissioner. The appellants had not paid the SAD component of the credit availed on import of components at the time of their removal for manufacture of PCBs. We find that the show cause notice had invoked wrong irregular CENVAT credit taken by the assessee. The amount involved is not irregular credit nor so utilized. We find that the demand of duty of Rs.2,12,40,288/- and penalty imposed are not in accordance with law, since the same has been ordered invoking inapplicable provisions. We vacate the demand of so called irregular CENVAT credit availed by the assessee. Consequently, demand of interest also stands vacated.

5. The learned A.R. relies on the impugned order but at the same time agrees that the issue was considered by an order of this Tribunal, as aforementioned in the case of M/s MIRC Electronics Ltd.

6. Having considered the rival contentions, I find that the present proceedings were initiated pursuant to the discrepancy noted by Revenue in the records of M/s MIRC Electronics. As the said issue was concluded in favour of M/s MIRC Electronics, no cause of action remains against the present appellant. As such I set aside the impugned order. Thus, the appeal is allowed with consequential benefit if any.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

Sp

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