M/S.Tayo Rolls Ltd vs Commissioner Of Central Excise & ...

Stay Petition No.SP-70508/13 & Appeal No.EA-70508/13 (Arising out of Order-in-Original No.04/Commr/2013 dated 31.01.2013 passed by the Commissioner of Central Excise & Service Tax, Jamshedpur.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)

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

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Tayo Rolls Ltd. Applicant (s)/Appellant (s) Vs.

Commissioner of Central Excise & Service Tax, Jamshedpur Respondent (s)

Appearance:

Shri R.Raghavan, Advocate & Shri T.Chakraborty, Advocate for the Appellant (s)

Shri A.Roy, Supdt.(AR) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)

Date of Hearing:- 16.09.2015 Date of Pronouncement :- 16.09.2015

ORDER NO.FO/A/75502/2015

Per Dr. D.M. Misra.

1. This is an application seeking waiver of pre-deposit of duty of Rs.1.32 Crores and equal amount imposed under section 11AC of Central Excise Act, 1944 and under Rule 15(2) of the CENVAT Credit Rules.

2. Shri R.Raghavan, ld.Advocate for the applicant submits that the entire demand has been confirmed against the Applicant on the ground that the inputs namely angles, channels, plates, bars etc. had not been used in the fabrication of various parts, components of machineries, but used in the fabrication of structurals as alleged. He submits that the ld.Commissioner has not recorded reasons while confirming the demand. However, he fairly accepts that all the evidences that are required to show that these items were used in the fabrication of parts, components and machineries of the various machineries in the fabrication, hence eligible to the capital goods credit, could not be produced before the ld.Commissioner. The ld.Advocate further submitted that the entire demand is barred by limitation as all the facts were within the knowledge of the department. However, at this stage he makes an offer to deposit Rs.10.00 Lakhs and prays that the matter may be remanded to the adjudicating authority for re-consideration of the issues afresh.

3. After hearing both sides for some time we find that the appeal itself could be disposed of at this stage. Accordingly, with the consent of both sides the appeal is taken up for disposal.

4. We find that the entire dispute centers around the eligibility of CENVAT Credit on various items namely angles, channels, beams, plates etc. which the Revenue alleged to have been used for fabrication of supporting structures, whereas the claim of the appellant was that all these items were used in the fabrication of parts and components of machineries, which satisfy the definition of capital goods laid down under rule 2(a) of CENVAT Credit Rules, 2004, accordingly eligible to the CENVAT Credit. We find that the issues raised rests on determination of facts on the basis of evidences adduced by both sides which has not been properly carried out, a fact not disputed by both sides. In the result, it is prudent to remand the matter to the adjudicating authority, to decide all the issues afresh taking into consideration the evidences on record and the evidences that would be produced by the appellant during the course of adjudication proceeding. At this stage the offer to deposit Rs.10.00 Lakhs seems to be reasonable. Consequently, the appellant is directed to deposit Rs.10.00 Lakhs within a period of 8(eight) weeks from the communication of this order and report compliance directly to the Commissioner. All issues are kept open. Needless to mention a reasonable opportunity of hearing be granted to the appellant. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.) SD/ SD/

(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

3 Appeal No.EA-70508/13