M/S. Sabic Innovative Plastics India ... vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-COMMR-A-/430/VDR-I/2011 dated 13.12.2011 Passed by Commissioner (Appeals) Central Excise & Service Tax, Customs, Vadodara )

M/s. Sabic Innovative Plastics India Pvt. Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Vadodara : Respondent (s)

Represented by :

For Appellant (s) : Shri Willingdon Christian, Advocate For Respondent (s) : Shri L. Tendupatra, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 26.02.2015

ORDER No. A/10185 / 2015 Dated 26.02.2015

Per : Mr. P.K. Das;

The applicant filed this application for early hearing of the appeal. After hearing both the sides, I find that the appeal may be decided at this stage.

2. After considering the submissions made by both sides, I find that the issue involved in this case is that appellant erroneously taken CENVAT credit of Rs. 25,07,959.00 on the capital goods during the period from September 2007 to April 2009 and reversed same in September 2008 and December 2009. The adjudicating authority confirmed the demand of interest of Rs. 3,22,119/- and appropriated the amount of interest of Rs. 13,030/- as paid by the appellant. It has also imposed penalty of Rs. 3,22,119/- as per the provisions of Rule 15 of the Cenvat Credit Rules, 2004. Learned Advocate submits that the appellant had not utilised the credit and therefore, interest and penalty would not sustain. In support of his contention, he relied upon the following decisions:-

(a) Gary Pharmaceuticals (P) Limited vs. CCE  2013 (297) ELT 397 (Tri.)

(b) CCE vs. Sharda Energy & Minerals Limited  2013 (291) ELT 404 (Tri.)

(c) Gurmehar Construction vs. CCE - 2014 (7) TMI 849 CESTAT

(d) CCE vs. Bill Forge Pvt. Limited  2012 (279) ELT 209 (Kar.)

(e) CCE vs. Strategic Engineering (P) Limited  2014-TIOL-466-HC-MAD-CX.

3. On perusal of the adjudication order, I find that the adjudicating authority observed that CENVAT credit on capital goods in the same financial year as restricted to 50% and in the instant case, the appellant took 100% credit on capital goods and also utilised for payment of Central Excise duty. On the other hand, it is seen from the same adjudication order that appellant had took stand that they have not utilised the credit and the entire amount of CENVAT credit stands intact in the CENVAT credit register. In my considered view, the matter is required to be re-examined by the adjudicating authority on the facts and the case laws, as placed by the learned Advocate.

5. In view of the above discussion, the impugned orders are set-aside. The matter is remanded to the adjudicating authority to decide afresh after considering the contention of the appellant that they have not utilized the CENVAT credit and in the light of case laws cited by them. Appeal is allowed by way of remand. Needless to say that the adjudicating authority shall give proper opportunity of hearing before passing order. Application for early hearing of the appeal is disposed of.

Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

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