M/S. Sirigiri Plastic Industries vs Commissioner Of Central Excise, ...

[Arising out of (i) Order-in-Appeal No.24 & 25/2006 (H-IV) CE dated 26.7.2006 and (ii) Order-in-Appeal No. 9 & 10/2009 (H-IV) CE dated 30.1.2009 both passed by the Commissioner of Customs, Excise and Service Tax (Appeals-II), Hyderabad.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters 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 the 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

M/s. SIRIGIRI PLASTIC INDUSTRIES UNIT II, PLOT NO.116, IDA, KATTEDAN, HYDERABAD (AP) Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD  500 004. AP Respondent(s)

Appearance:

Mr. C. Subba Reddy, Advocate For the Appellant

Mr. S. Teli, Dy. Commissioner (AR) For the Respondent Date of Hearing: 01/05/2015

Date of Decision: 05/06/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21213-21214 / 2015

Per : ARCHANA WADHWA

Vide these impugned orders the lower authorities have denied the benefit of CENVAT Credit of duty to the tune of Rs.21,44,000/- availed by Unit-II of the appellant and has also imposed penalty of identical amount on Unit-I.

2. As per facts on records, the appellant was having a unit at Plot No.116, IDA, Kattedan, Hyderabad. They availed the benefit of CENVAT credit of duty on three machines, as capital goods during the year 2000-2001. However, it was found that the said machines were not installed in their premises and they were installed in the premises of one M/s. S. K. Plastic Industries. The same were accordingly seized and subsequently released provisionally. It was the appellants contention that the premises of M/s. S. K. Plastic Industries were taken by them on rent and machines were installed therein and were being used by them in the manufacture of their final product. The proceedings as regards the availability of CENVAT credit are going on separately and the matter is pending before the Tribunal.

2.1 Subsequently the said rented place was got registered by the appellant with the Central Excise department as Unit-II on 19.7.2002. The appellant raised an invoice and transferred the capital machines in question to Unit-II, on payment of duty. Unit-II took the credit accordingly.

2.2 The present proceedings are against Unit-II. The lower authorities have held that credit was not available to Unit-I because the machines were not installed in their premises and transfer of credit to Unit-II was not proper. Accordingly credit stands denied to Unit-II and penalty stands imposed on Unit-I

3. The appellants have taken a stand that the main dispute as regards the availability of credit to Unit-I is still pending and has not attained finality. If that be so, the availability of credit by Unit-II would be dependent upon the outcome of the proceedings as regards availability of credit to Unit-I. Accordingly, I set aside the impugned orders and remand the matter to the original adjudicating authority for fresh decision after the dispute in the first proceedings as regards availability of credit to Unit-I are decided.

Both the appeals are thus allowed by way of remand.

(Order pronounced in open court on 05/06/2015.)

ARCHANA WADHWA JUDICIAL MEMBER rv 3