Regal Shoes vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. YG(21)21/MI/2008 dated 31.10.2008 passed by Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature:

Honble Mr. Ramesh Nair, Member (Judicial) ======================================================

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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Regal Shoes Appellant Commissioner of Central Excise, Mumbai-I

Vs. Commissioner of Central Excise, Mumbai-I Respondent Regal Shoes

Appearance: None for assessee Shri V.K. Agarwal, Additional Commissioner (AR), for Revenue

CORAM: Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 17.4.2015 Date of Decision: 17.4.2015

ORDER NO

The appeal is directed against order-in-appeal No. YG(21)21/MI/2008 dated 31.10.2008 passed by Commissioner of Central Excise (Appeals), Mumbai, wherein the Commissioner (Appeals) set aside the demand of Rs.8,00,387/-, however, upheld the demand of Rs.4,94,956/-. The fact of the case is that the appellant-assessee is engaged in the manufacture of footwears and also carrying out the trading activity of footwears. They are availing cenvat credit in respect of common input service used in respect of the manufactured footwears and traded footwears. Show cause notices dated 8.2.2007 and 4.5.2007 were issued proposing disallowance of cenvat credit amounting to Rs.13,40,052/- and Rs.2,10,008/- respectively, for the period April 2006 to January 2007 on the ground that the input service was used for trading of footwears. In adjudication, the entire demand proposed in the show cause notice was confirmed and a penalty of equal amount was also imposed. Interest under Section 11AB was also demanded. Aggrieved by the said order, the appellant-assessee filed appeal before the Commissioner (Appeals) who dropped the demand of Rs.8,00,387/- and upheld the demand of Rs.4,94,926/-. Aggrieved by the said impugned order, the Revenue filed appeal which is registered as E/192/09 and the assessee filed appeal bearing No. E/1157/08. When the matter was called for hearing, none appeared on behalf of the appellant-assessee nor there is any request for adjournment of the hearing. I, therefore, take up the appeals for disposal.

2. Shri V.K. Agrawal, learned Additional Commissioner (AR) in respect of the Revenues appeal, submits that in the order of the Commissioner (Appeals), the Commissioner (Appeals) has dropped the demand to the tune of Rs.8,00,387/- quoting that as per the chart forming part of his order. However, no such chart was found attached or enclosed with the Commissioner (Appeals)s order. The Revenue has made all efforts to get the said chart but could not get the same. The ground of the Revenues appeal is solely on this point that regarding the quantification of dropping of demand to the tune of Rs.8,00,387/-, the relevant quantification chart is not available. Therefore, the dropping of demand of Rs.8,00,387/- is without any basis. Therefore, the order to this extent should be set aside.

3. I have carefully considered the submissions made by the learned AR and perused the records. I reproduce the relevant finding of the Commissioner (Appeals)s order as under:-

I agree with the submission of the appellant that commission on the manufactured goods needs to be allowed in view of the decision in Metro Shoes Pvt. Ltd. since all expenses incurred from the stage of manufacturing till the clearance of the final product from the place of removal are covered by Rule 2(l) of the Cenvat Credit Rules, 2004 and hence, the credit to the tune of Rs.8,00,387/- in respect of commission paid on the goods manufactured by the appellant is allowed as per the chart forming part of this order.

4. From the above finding of the Commissioner (Appeals)s order, it is clearly appearing that the quantification of demand of Rs.8,00,387/- dropped by the impugned order is based on the chart which is forming part of the impugned order. However, the said chart is neither found enclosed with the order copy submitted by the Revenue along with their appeal nor it is found with the appeal filed by the assessee. In view of this position, it cannot be ascertained the basis of quantification of demand dropped as well as the demand upheld. In view of this position, it is desirable that the matter should go back to the Commissioner (Appeals) to pass a fresh order considering all the points. I, therefore, remand the matter to the Commissioner (Appeals) for consideration of the matter afresh and passing a reasonable order.

5. Both the appeals filed by the assessee as well as by the Revenue are disposed of by way of remand in the above terms.

(Operative part pronounced in Court)

(Ramesh Nair) Member (Judicial)

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