M/S. Newage Generators Pvt. Ltd vs C.C.E. Delhi-Iv

[Arising out of Order-in-Appeal No. 94-96/CE/APPL/DLH-IV/2014 dated 24.06.2014 by the Commissioner of Central Excise (Appeals), Delhi-IV].

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. Newage Generators Pvt. Ltd. .Appellants

Vs.

C.C.E. Delhi-IV .Respondent

Appearance:

Shri N.K. Sharma, Advocate for the Appellants

Shri A.K. Dhawan, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 05.01.2015

FINAL ORDER NO.50027/2015-EX(SM)

Per Ashok Jindal:

The appellant has filed an application of Condonation of Delay for 6 days delay in filing the appeal.

Considering the reasons stated for causing of delay has been explained satisfactorily. Therefore application for Condonation of delay is allowed.

2. After hearing both the sides I find that the appeal itself can be disposed off at this stage. Therefore appeal is taken up for consideration altogether.

3. The facts of the case are that DGCEI conducted investigations in the case of M/s. Jawala Steel Corporation, who is engaged in the manufacturing steel tubes and was procuring raw material i.e. HR Coils from M/s. SAIL. M/s. Jawala Steel Corporation was also clearing certain inputs as such in terms of Rule 3(5) of Cenvat Credit Rules, 2004. The allegations against M/s. Jawala Steel Corporation was that they were procuring HR Coils from M/s. SAIL and delivery of the same was taken up at Faridabad. Thereafter M/s. Jawala Steel Corporation was taking Cenvat Credit on the strength of purchase invoices of SAIL and inputs bought from SAIL were clandestinely removed by Jawala Steel Corporation to various brokers / cutters at Delhi and thereafter they raised the cenvatable invoices of the goods under the cover of inputs cleared as such against clandestinely removed inputs.

3. The proceedings against M/s Jawala Steel Corporation as well as against the appellant were initiated. By way of impugned order, duty demand is confirmed against the appellant as appellant being the actual user of the goods and penalty is also imposed on the appellant under Rule 26 of the Central Excise Rules, 2002. Aggrieved from the said order, the appellant is before me.

4. The contention of the Ld. Counsel is that as proceedings against M/s Jawala Steel Corporation is still pending, therefore the demand of duty and imposition of penalty on the appellant are pre mature. In these circumstances, impugned order is required to be set aside and matter is remanded back to the Adjudicating Authority for consideration of the defence of the appellant along with the proceedings against M/s Jawala Steel Corporation. In these circumstances, it is prayed that matter be remanded back to the Adjudicating Authority.

5. Heard the Ld Counsel and gone through the records produced before me.

6. I find that proceedings against M/s. Jawala Steel Corporation is pending before the Adjudicating Authority and in similar type of case vide order No.A/54715-54732/2014/SM(BR) dated 10/12/2014 this Tribunal has remanded back the matter to the Adjudicating Authority to adjudicate the matter along with case of M/s Jawala Steel Corporation. Therefore, in this case also, I set aside the impugned order and remand the matter back to the adjudicating authority to adjudicate this matter also along with the case of M/s Jawala Steel Corporation.

7. The appeal is disposed off on above terms.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

3

E/55732/2014-EX(SM)