M/S. Shree Khedut Sahakari Khand Udyog ... vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-CCEA-SRT-II-SSP-233-U-S-35A and OIA-CCEA-SRT-II-SSP-234-U-S-35A both dated 17.01.2013, passed by Commissioner (Appeals) Central Excise, & S.T., Surat)

M/s. Shree Khedut Sahakari Khand Udyog Mandli Limited: Appellant (s)

VERSUS

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

Represented by :

For Appellant (s) : Shri Rahul Gajera, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

Mr. P.K. Das, Honble 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?

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, Honble Member (Judicial)

Date of Hearing / Decision : 18.09.2015

ORDER No.A/11332-11333/2015 Dated 18.09.2015

Per : Mr. P.K. Das;

Common issue involved in these appeals and hence both the appeals are taken up together for disposal.

2. Learned Advocate on behalf of the appellant submits that they have availed excess CENVAT credit than the eligible input invoices. They have reversed the credit when pointed out by the audit on 19.03.2009 and the show cause notices were issued on 21.06.2011. He also submits that the Commissioner (Appeals) erroneously proceeded on the basis that appellant availed CENVAT credit of capital goods and simultaneously also availed depreciation under the Income Tax Act, 1961.

3. I agree with the submissions of the learned Advocate. It is seen that the Commissioner (Appeals) had not examined the facts of the case and proceeded on the basis of different issues. So, the impugned orders cannot be sustained.

4. In view of the above discussion, I set-aside the impugned order and remand the matter to Commissioner (Appeals) to decide the issue afresh. Appeals are allowed by way of remand.

(Order dictated and pronounced in the Court)

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

2