Sail vs Commissioner Of Central Excise, Bolpur

(ARISING OUT OF ORDER-IN-ORIGINAL No. 85/Commr/BOL/11 DATED 13/12/11 PASSED BY COMMISSIONER OF Central Excise, BOLPUR

FOR APPROVAL AND SIGNATURES OF

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

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 authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?

SAIL 1) Shri Ajay Kumar SinghAPPLICANT(S) VERSUS COMMISSIONER OF CENTRAL EXCISE, BOLPUR ...RESPONDENT (S)

APPEARANCE:

Dr.Samir Chakraborty, ADVOCATE & Shri Abhijit Biswas, Advocate FOR THE APPELLANTS

SHRI S.Nath, AC(AR) FOR THE REVENUE.

CORAM:

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

Date of Hearing: 28.09.2015 Date of Decision: 28.09.2015

ORDER NO FO/A/75559/15

Per Shri H.K.Thakur

The present stay application and appeal has been filed by the appellant for staying the operation of OIO No. 85/ Commr /BOL /11 dt 13/12/2011 passed by commissioner of Central Excise & Service Tax Commissionrate, Bolpur under which an amount of Rs. 9,22,32,280/- has been confirmed alongwith interest and an equivalent penalty has also been imposed. The period of dispute is from June 2006 to March 2011.

2.Dr. Samir Chakrabarty (Advocate) and Sh. Abhijit Biswas (Advocate) appeared on behalf of the appellant. Sh. Chakrabarty argued that issue involved in these proceedings is admissibility of cenvat Credit on items like angles, channels, plates etc. used predominantly in the maintenance and repairs of the capital goods. It was his case that their submissions are reflected in para  3.1 of the OIO dt 13/12/2011. Learned advocate made the bench go through their reply dt 15/07/99 to the show cause notice and emphasized that details of use of the impugned items have been given in the annexure to their reply dt 15/07/09. That cenvat credit on the items used in the maintenance / repairs of capital goods is admissible as per larger bench judgment in the case of Vandana Global Ltd Vs CCE [2010(253) ELT- 440 (T-LB)]. It was also his case that as the issue was disputable & got settled by this larger bench decision, therefore, demand beyond a period of one year from SCN dt 16/06/11 is time barred. On a specific query from the bench Sh. Samir Chakarbarty mentioned that no Chartered Engineers certificate was produced before the adjudicating authority regarding use of items in the maintenance / repairs of capital goods.

3.Sh. S. Nath AC (AR) appearing on behalf of the Revenue argued that appellant could not justify their claim as held by the Adjudicating authority in Para  5-5 of the OIO dt 13/12/2011. That in the absence of relevant details & exact use of impugned items it has been correctly held that angles, channels, TMT bars etc are used in the making of support structures. Learned AR, therefore, strongly defended the OIO dt 13/12/11 passed by the Adjudicating Authority.

4.Heard both sides & perused the case records. Admissibity of cenvat credit on items like Angles. Channels TMT bars etc depends upon the use of these materials as held by CESTAT Larger bench in the case of Vandana Global Ltd VS CCE (Supra). It is the case of the appellant that the use of the impugned items is predominantly for making Spares components of the capital goods and that credit is admissible. No certificate of a Chartered Engineer was furnished by the appellant in support of that claim before the Adjudicating Authority or before us. In the absence of such expert expert opinion a final view can also not be taken by this bench. In the interest of justice this case is required to be remanded to the adjudicating authority. After allowing the stay application appeal itself is taken up for disposal. We also observe that appellant has not made proper submissions with documentary evidences before the adjudicating authority and are directed to pre deposit on amount of Rs 25 lakh within eight weeks and report compliance to the Adjudicating authority. On compliance of the above directions of pre-deposit ordered Adjudicating authority will decide the case afresh in denovo proceedings after giving a personal hearing to the appellants. Appellant will also provide all the required documents for substantiating their claim. We make it clear that bench has not expressed any opinion on the merits of the case and all the issues, including the issue of time bar of demand, have been kept open for decision in the remand proceedings

5. Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority. Stay petition filed by the appellant is also disposal off.

(Operative portion of the order declared in the court)

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

Tushar kumar