M/S.Maithan Alloys Ltd vs Cce-Bolpur

(Arising out of Order-in-Appeal No.71/BOL/2013 dated 17.06.2013 passed by the Commissioner(Appeal-III) of Central Excise, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, 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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Maithan Alloys Ltd. Applicant (s)/Appellant (s)

Vs.

CCE-BOLPUR Respondent (s)

Appearance:

Shri N.K.Chowdhury, Advocate for the Appellant (s)

Shri A.Roy, Supdt.(A.R.) for the Revenue (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial)

Date of Hearing/Decision :- 26.02.2015 Date of Pronouncement :- 26.02.2015

ORDER NO.FO/A/75103/2015

Per Dr. D.M. Misra.

1. This is an Application seeking waiver of pre-deposit of CENVAT Credit of Rs.4,98,473/- and equal amount of imposed under Rule 15(3) of the CENVAT Credit Rules, 2004.

2. At the outset Shri N.K.Chowdhury, Ld.Advocate for the Applicant submits that CENVAT Credit was denied to them by the adjudicating authority on the services received viz. consignment agent service, commission agent service, banking and financial services, GTA services, security services and CHA services wrongly mentioned as cargo handling service etc.. He submits that all these services are input services as define under Rule 2(l) of CENVAT Credit Rules, 2004 and accordingly CENVAT Credit is admissible on the same. It is his submission that once the Ld.Commissioner acknowledges that the place of removal is the port therefore all services up to the said place of removal ought to be considered as linked with the manufacturing activity of goods exported and hence admissible to CENVAT Credit. In support he has referred to various judgements of this Tribunal. However, he has fairly submitted that the Ld.Commissioner has not decided the issue on merit, but dismissed their Appeal for failure to deposit Rs.2.50 Lakhs as a condition to hear their Appeal as per section 35F of Central Excise Act, 1944. After instruction from the client he offers to deposit Rs.40,000/- and requests that the matter may be remitted to the Ld.Commissioner(Appeals) for deciding the issue afresh.

3. The Ld.A.R. for the Revenue reiterated the findings of the Ld.Commissioner(Appeals). He fairly accepts that the Appeal has not been decided on merit, but it was dismissed for non-compliance with the direction of pre-deposit. He has no objection in remanding the case.

4. After hearing both sides for some time I find that the Appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit, I take up the Appeal itself for disposal with the consent of both sides.

5. I find that the Ld.Commissioner(Appeals) has not decided the issue on merit, but dismissed their Appeal for non-compliance with the direction of pre-deposit under section 35F of Central Excise Act, 1944. From the arguments advanced by the Ld.Advocate, prima facie, I find that the services received by them could be considered as input services. However, a detailed scrutiny of facts as well as case laws on the subject are required to be made. Since the Ld.Commissioner(Appeals) has not decided the issue on merit, in my opinion it is a fit case to be remitted to the Ld.Commissioner for recording findings on the arguments advanced by the Appellant. At this stage, the offer to deposit Rs.40,000/- seems to be reasonable. Consequently the Appellant is directed to deposit Rs.40,000/-(Rupees Forty Thousand only) within a period of 6(six) weeks from today and report compliance directly to the Ld.Commissioner(Appeals). The Ld.Commissioner(Appeals) after recording compliance would proceed to decide the Appeal on merit without insisting any further pre-deposit. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/

(D.M.MISRA) MEMBER(JUDICIAL) sm

4 Appeal No.Ex.Ap.75421/14