Shree New India Processors vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/3418/05

(Arising out of Order-in-Appeal No.BR/148/Th-I/2005 dated 21/07/2005 passed by Commissioner of Central Excise (Appeals), Mumbai-IV)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S. S. Garg, 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 : Yes 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? ========================================

Shree New India Processors Appellant Vs. Commissioner of Central Excise, Respondent Thane-I

Appearance:

Shri.Vishal Agarwal, Advocate for appellant Shri.S.V. Nair, Asst. Comm. (AR), for respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S.S. Garg, Member (Judicial)

Date of Hearing : 30/09/2015 Date of Decision : 30/09/2015

ORDER NO

Per: P. K. Jain

1. Brief facts of the case are that the appellant has filed a refund claim under Rule 5 of the Cenvat Credit Rules, for the month of June, July, August, September, October and November 2003. Initially, the appellant filed the refund claim based upon the average credit on inputs taken for the manufacture of goods. On pointing out by the department, the appellant revised the claim with reference to the actual credit on inputs utilised for the goods exported. The Assistant Commissioner has rejected the refund claim on the ground that the statement shows lot wise utilization of inputs. It is further stated in the findings that as per the records maintained by the assessee that the goods exported under the various ARE-1 were manufactured out of inputs received from various suppliers under various invoices and at different rates. However, the claimant has claimed the refund on the basis of an average rate and rejected the claim. In addition another point was taken up that the appellant has also cleared the goods in the domestic area and therefore, it would be possible for them to utilise for the accumulated Cenvat Credit. The appeal filed before the Commissioner (Appeal) was also dismissed.

2. The learned Counsel for the appellant submits that the credit of duty on the inputs was higher than the duty leviable on the final products and therefore, it was not possible for them to utilise the credit available due to export of goods. It was further submitted that they have given ARE-1 wise the lot number and the input credit taken and for each ARE-1 they have also indicated different invoices and different lots and therefore, it is possible to precisely calculate the input credit.

3. The learned AR reiterates the findings of the appellate authority.

4. We have considered the submissions made by both the sides.

4.1 During argument it was enquired from the appellant whether they have paid any duty in PLA and it was informed that no duty was paid in PLA as credit on inputs even for domestic clearance was higher than the duty leviable on the goods cleared in the domestic market. In view of the said position it is not possible for the appellant to utilise the credit of duty available on the goods cleared in the domestic market. Moreover, after 2004, alternate schemes are available and goods being cleared in domestic market are duty free. We, therefore, direct that under the circumstances, the appellant will be entitled to get the refund of the unutilized credit of duty as inputs used in the goods exported under bond. As far as the second point is concerned, the learned Counsel for the appellant submitted that it is possible for them to give ARE-1 wise details of the input used and their corresponding invoices. It will therefore, be possible to compute the credit of duty on inputs. However, the said exercise cannot be done at Tribunal stage and in view of this position, the matter is remanded to the original authority to go through the documents and in case any additional information is required, the same will be submitted by the appellant in order to satisfy the requirement of law.

5. The appeal is allowed by way of remand. Since the matter pertains to 2003, original authority may dispose of the matter expeditiously.

(Pronounced in Court)

(S.S. Garg) Member (Judicial) (P.K. Jain) Member (Technical)

pj

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Appeal No.E/3418/05