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M/S. Supreme Automech (India) Pvt. Ltd vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal27 May 2015

Ratio decidendi

The rule this decision rests on

Where a claim for refund of accumulated CENVAT credit rests on the plea that the credit could not be utilised, the adjudicating authority must enquire whether the claimant's finished goods were inputs consumed in the manufacture of goods by a 100% EOU, whether those goods were suitable for use in that manufacture, and whether the user EOU earned foreign exchange; an appellate order that fails to make such enquiry, when the plea has been raised, is unsustainable. Where the appellate authority has failed to examine whether the accumulated credit was incapable of utilisation, the matter is to be decided in favour of the claimant on the authority of the High Court decision cited, which the Tribunal holds to entitle a DTA unit supplying inputs used in goods cleared to a 100% EOU to refund of accumulated CENVAT credit that cannot be utilised.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIE/S/40370/2015 and E/41925/2014E/S/40369/2015 and E/41926/2014

[Arising out of Orders-in-Appeal No.17 & 18/2014 (P)(D), dated 23.06.2014 passed by the Commissioner of Central Excise (Appeals), Chennai]

M/s. SUPREME AUTOMECH (INDIA) PVT. LTD. APPELLANT

Versus

COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY RESPONDENT

Appearance:

For the Appellant Shri S. Murugappan, Adv.

For the Respondent Shri K.P.Muralidharan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 27-05-2015

FINAL ORDER NOs. 40597-40598 / 2015

There is no enquiry by the authority below to ascertain whether the finished goods of the appellant was input of the EOU and such input consumed to manufacture final goods. There was also no enquiry to suggest that the finished goods of the appellant were not suitable for use in manufacture by the EOU. Thirdly, there was no further enquiry caused to satisfy that the user EOU has not earned foreign exchange. In absence of such enquiry, entire purpose of the appeal order appears to be frustrating the law.

2. When there was plea that accumulated credits were not possible to be utilised, such imposability should have been examined by the learned Commissioner (Appeals). He has failed to do so. Honble Gujarat High Court in the case of Commissioner of Central Excise & Customs Vs NBM Industries reported in 2012 (276) E.L.T.9 (Guj.) has held that the input used in the manufacture of goods cleared by DTA unit to 100% EOU entitles the DTA to the refund of the Cenvt credit accumulated not possible to be utilised.

2. In view of the above, both the appeals are allowed and stay application stands disposed. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 29-05-2015

DRAFT Remarks

I II III

Date of dictation 2.05.2015

Draft Order - Date of typing 29.05.2015

Fair Order Typing 29.05.2015

Date of number and date of dispatch

4 E/S/40370/2015 and E/41925/2014 E/S/40369/2015 and E/41926/2014

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