M/S. Vinati Organics Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. PII/RKS/140/2012 dtd. 2/5/2012 passed by the Commissioner of Central Excise (Appeals), Pune II]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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M/s. Vinati Organics Ltd. : Appellants

VS

Commissioner of Central Excise, Pune-II : Respondent

Appearance

Shri. M.D. Sathe, Consultant for the Appellants Shri. B. Kumar Iyer, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 20/2/2015 Date of decision: 20/2/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in- Appeal No. PII/RKS/140/2012 dtd. 2/5/2012 passed by the Commissioner of Central Excise (Appeals), Pune II, wherein the Ld. Commissioner(Appeals) allowed the appeal of the Revenue and set aside the Order-in-Original No. RTN/138/Adj/11-12(STR/06/11-12) dated 22/11/2011. The fact of the case is that the appellant is engaged in the manufacture of export of various inorganic chemicals falling under Chapter 29 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant availed Cenvat credit in respect of outward transportation. On the audit objection they reverse the Cenvat Credit of Rs. 1,45,739/-under protest and subsequently filed the refund claim on the ground that this transport services are used for transportation of export goods from the factory to the port of export. The adjudicating authority vide order-in-original dated 22/11/2011 sanctioned the refund of Cenvat credit on the ground that the clearance of their goods is at door steps of the customers on FOR basis and the various case laws including the case of M/s. Ambuja Cement Vs. UOI passed by Honble High Court of Panjab and Haryana reported in [AIT-2009-95-HC]. The adjudicating authority also relied upon the case of ABB Ltd., Vs. CCE, [2011-TIOL-395-HC-KAR-ST]. Aggrieved by the said order, Revenue filed appeal before the Commissioner (Appeals), which was allowed by the impugned order. Aggrieved by said order-in-appeal the appellant is before me.

2. Shri. M.D. Sathe, Ld. Consultant for the appellant submits that the Ld. Commissioner (Appeals) has denied the refund claim on the ground that appellant has not substantiated their claim that transportation were used for export. He also submits that the Ld. Commissioner (Appeals) also held that the claim is time bar, as the same was filed after one year of the reversal of the Cenvat credit. In this regard his submission is that as far as Cenvat credit related to the DTA clearances, the appellant have reversed the same therefore the Cenvat Credit in respect of transportation related to DTA clearance was not included in the refund amount. As regard time bar, he submits that reversal was made under protest at the time of audit objection and the protest was lodged before the department therefore refund can not be denied on the ground of time bar.

3. Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order and he further submits that it is undisputed that the appellant is engaged in the clearances of the goods in the DTA market. The appellant has not substantiated the bifurcation of the transportation in respect of export as well as DTA clearances therefore Ld. Commissioner(appeals) has rightly taken the view that in absence of such bifurcation the refund was wrongly sanctioned by the lower authority.

4. I have carefully considered the submissions made by both the sides and perused the record.

5. From the record it is clear that the appellant is engaged in the clearances in DTA as well as for export. I am of the view that transportation service received in respect of clearance of export goods from the factory to the port of export is treated to be transportation up to place of removal. In case of export sale, price is exclusive of transportation charges and the place of removal is port of export, therefore the Cenvat credit in respect of transportation for exportation of goods up to the port is admissible. However, even from order of the adjudicating authority this fact was not substantiated that how much quantum of transportation was used for DTA and how much for export of goods. From the findings of the original authority it appears that he has considered the transportation of DTA sale also. As regard findings of the Ld. Commissioner (Appeals) regarding the time bar of the refund claim, I do not agree for the simple reason that it is undisputed fact that the reversal of Cenvat credit was made under protest. It was recorded by departmental officer. Since reversal made under protest, the limitation will not apply. Therefore, the Ld. Commissioner gravely erred in denying the refund on time bar ground. In view of my above discussion I remand the matter to the original authority to decide the refund claim a fresh by taking on record details and documents which substantiate the fact that entire Cenvat credit claim is related to export only and after the same is satisfied, the refund must be allowed. The appellant is directed to produce the co-relation of documents such as LRs and export invoice. The adjudicating authority shall dispose of the matter within a period of two months from the date of receipt of this order. Needless to say that adjudicating authority shall give opportunity of personal hearing to the appellant before denovo adjudication of the matter. The appeal is allowed by way of remand.

(Dictated in court)

Ramesh Nair Member (Judicial)

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