M/S Raj Rayon Ltd vs Commissioner, Central Excise & Service ...
- CitationAppeal No.E/1196,1197,1308,1309/2009-DB
Ratio decidendi
The rule this decision rests on
The Tribunal may set aside an adjudication order and remand the matter for fresh decision where the eligibility of the CENVAT credit in issue depends on the use of the goods and the governing legal position is pending before a Larger Bench of the Tribunal and is to be settled by the latest decisions of the Larger Bench, the High Court and the Supreme Court, so that all issues must be examined in light of those decisions. Where the assessee has already deposited the entire duty demanded, the amount so deposited is to be retained by the Revenue pending the de novo adjudication, and no refund is to be granted until that adjudication is disposed of.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal No.E/1196,1197,1308,1309/2009-DB [Arising out of OIO No.02/MP/Vapi/2009, dt.31.03.2009, passed by Commissioner of Central Excise & Service Tax, Vapi]
1. M/s Raj Rayon Ltd, 2. Shri Gouri Shankar Poddar, 3. M/s Bhartiya Alloys & Steel Cast Ltd., 4. Shri Dinesh Mangilal Jain Appellants
Vs
Commissioner, Central Excise & Service Tax, Vapi Respondent
Represented by:
For Appellant: Shri S.J. Vyas, Shri Anand Nainawati - Advocates For Respondent: Dr. J. Nagori, Authorised Representative
For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)
Date of Hearing/Decision:24.08.2015
Order No.A/ 11233-11236/2015, dt.24.08.2015
Per: P.K. Das
Heard both the sides and perused the records.
2. The relevant facts of the case, in brief, are that the Appellant M/s Rajkot Rayon Ltd (in short the Company) is engaged in the manufacture of Polyester Filament Yarn (PFY) classifiable under Sub Heading No.5402.00 of the Schedule to the Central Excise Tariff Act, 1985. They were availing CENVAT Credit on capital goods and inputs. The Central Excise officers visited the factory premises of the Company and detected the irregular availment of the CENVAT Credit on capital goods. A Show Cause Notice dt.11.06.2008 was issued, proposing denial of CENVAT Credit along with interest and to impose penalty for the period 2005-2006 and 2006-2007. The Adjudicating authority confirmed the demand of CENVAT Credit along with interest and imposed penalty of equal amount of CENVAT Credit. It has also appropriated the entire amount of CENVAT Credit as deposited by the Company during the investigation. A penalty was imposed on Shri Gouri Shankar Poddar, Chairman/Managing Director of the Company, Shri Dinesh Mangilal Jain, Director of M/s Bhartiya Alloys & Steel Cast Ltd and Shri Arvind J. Ghatalia, Broker, supplier of inputs.
3. After hearing both the sides and on perusal of the records, we find that the main contention of the learned Advocate on behalf of the Company is that the Company has not filed the proper reply as the eligibility of CENVAT Credit on Iron and Steel products was pending before the Larger Bench of the Tribunal, in the case of M/s Vandana Global Ltd. It is also argued on other issues. The learned Authorised Representative for the Revenue submits that the other issue is that the Company availed CENVAT Credit without actual receipt of the goods. We find that the Company already deposited entire amount of duty as demanded. The eligibility of CENVAT Credit on capital goods mainly iron and steel products would be depending on the use of the items and it would be decided in the light of the decision of the Larger Bench, Honble High Court and Hon'ble Supreme Court. In our considered view, the matter is required to be examined all the issues in the light of the latest decision of the Larger Bench, Hon'ble High Court and Tribunal as cited by both the sides.
4. In view of the above discussion, we set aside the impugned order. The matter is remanded to the Adjudicating authority to decide afresh, after considering the submissions of the Appellants in accordance with law. At this stage, the learned Authorised Representative for the Revenue submits that the direction may be issued that no refund should be granted of the deposit till the disposal of the de-novo proceedings. We agree with the submissions of the learned Authorised Representative and it is directed that the deposit made by the Appellant would be retained by the Revenue till the decision of the de-novo Adjudication. We direct the Adjudicating authority to decide the matter as expeditiously as possible. Needless to say that the Adjudicating authority shall give a proper opportunity of hearing before passing of order. All the appeals are allowed by way of remand.
(Dictated & Pronounced in Court)
(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)
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