M/S. J K Sons Engineers Pvt. Ltd vs Commissioner Of Customs
- CitationExcise Appeal No. 53123 of 2014
Ratio decidendi
The rule this decision rests on
Where a refund claim of Cenvat credit is rejected as premature solely because a prior decision of the Tribunal on the same question is under challenge before the High Court, that ground alone does not sustain the rejection where the claimant contends that the goods in question were used in the fabrication of capital goods, a factual contention which, if established, takes the case outside the ambit of the prior decision; in such circumstances the question of whether the goods were so used must first be examined by the adjudicating authority on the documents produced by the claimant, and the matter is to be remanded to it for that purpose.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 67(CE)RPR-I/2014 dated 04/3/2014 passed by Commissioner of Customs & Central Excise (Appeals) Raipur]
For approval and signature:
Honble Mr 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. J K Sons Engineers Pvt. Ltd. Appellants
Vs.
Commissioner of Customs Respondent
Central Excise, Raipur (CG)
Appearance:
Shri Ravi Hulani, Advocate for the Appellants
Ms. Ranjana Jha, AR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing /decision: 11. 5.2015
ORDER NO. FO/A 51626 /2015 SM
Per Ashok Jindal :
The appellant is in appeal against the impugned order rejecting their refund claim as pre-mature.
2. Heard the parties. Considered the submissions.
3. In this case, the appellant filed the refund claim of Cenvat credit reversed on steel items which was available to them on pointing out by the audit party. Later on, they filed the refund claim that these steel items have been used by them for fabrication of capital goods, therefore they are entitled for refund claim. Both the lower authorities rejected the refund claim as decision of Vandana Global Ltd. reported in [2010 (253) ELT 440 (Tri-LB)] is under challenge before the Honble Chhattisgarh High Court, therefore claim is pre-mature.
4. After considering the submissions made by both these sides, I hold that as appellant has shown to the authorities below that these steel items have been used by them for fabrication of capital goods if appellant has established this fact then in these circumstances, the decision of Vandana Global Ltd. is not applicable to the facts of this case, This aspect has not been examined by lower authorities. Therefore, matter needs examination at the end of adjudicating authority whether the item in question have been used in fabrication of capital goods or not. Therefore, impugned order is set aside, matter is consigned to the adjudicating authority to decide the issue on the basis of documents produced by the appellant in support of their refund claim and pass the order in accordance with the law within 90 days of receipt of this order.
5. Appeal is disposed of by way of remand.
( Dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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