Mirco Dynamics Pvt. Ltd vs Commissioner Of Central Excise, Pune-I

(Arising out of Order-in-Original No. 18/CEX/2006 dated 22.9.2006 and Order-in-Appeal No. P-I/BBP/38/2008 dated 20.2.2008 both passed by Commissioner of Central Excise, Pune-I)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and 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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Mirco Dynamics Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune-I Respondent

Appearance: Shri Makarand P. Joshi, Advocate, for appellant Shri V.K. Agrawal, Additional Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 19.3.2015 Date of Decision: 19.3.2015

ORDER NO

Per: P.K. Jain

Brief facts of the case are that the appellant is engaged in the manufacture of boilers and parts thereof. They are clearing the same on payment of duty as also clearing the boilers at nil rate of duty availing exemption under Notification 6/2002 dated 1.3.2002. They were availing credit on the inputs used in the manufacture of such boilers. Since the common inputs are being used in the manufacture of dutiable and exempted final products, they were required to follow the procedure as envisaged under Rule 57AD of the erstwhile Cenvat Credit Rules and Rule 6 of the Cenvat Credit Rules. The appellant was issued two show cause notices. For the period April 2001 to 18.9.2004, they were asked to pay an amount equal to 8% of the value of the exempted goods and an amount equal to 10% of the value of the exempted goods for the period 19.9.2004 to February 2006. The case was adjudicated and the Commissioner vide the impugned order dated 22.9.2006, confirmed the demand and also imposed penalty under Section 11AC. Aggrieved by the said order, the appellant is before us.

2. The learned counsel for the appellant states that the relevant law has been amended with retrospective effect vide Section 73 of the Finance Act, 2010 and in pursuance of the said provision, they have reversed the proportionate credit and, as envisaged under the said section, filed a letter to the Commissioner, Pune-I on 4th November 2010 which was received on 8th November 2010. They have not received any communication thereafter and in view of the provisions under the said Finance Act, it is assumed that the reversal made by them is as per the law and nothing survives thereafter.

3. The learned AR reiterates the findings in the impugned order and also submits letter No. TC-35/07/1036 dated 10.3.2015 received from Commissioner of Central Excise, Pune-II.

4. We have considered the submissions. The law relating to reversal of the credit underwent changes after the passing of the order and vide Finance Act, 2010, retrospective amendments were made and the assessees were given an option to reverse the credit based upon the specified formula and regularize the past disputes. As is clear from the letter dated 10.3.2015, the appellant has filed letter dated 4.11.2010 which was received in the Commissionerate on 8.11.2010. It is not clear whether the appellant has satisfied the conditions of the provisions or not.

5. In view of the above position, we set aside the impugned order and remand the matter back to the Commissioner to decide the issue after taking into consideration the appellants letter dated 4.11.2010 and the relevant provisions of the Finance Act, 2010. The appeal is allowed by way of remand in above terms.

(Operative part pronounced in Court)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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