Vital Healthcare P. Ltd vs Commissioner Of Central Excise, Nashik

(Arising out Order-in-Appeal No. AKP/19/NSK/2010 dated 21.01.2010 passed by the Commissioner of Central Excise (Appeals), Nashik)

For approval and signature: Honble Mr. M.V. Ravindran, 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 Yes of the Order?

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

Vital Healthcare P. Ltd. Appellant

Vs.

Commissioner of Central Excise, Nashik Respondent

Commissioner of Central Excise, Nashik Appellant

Vs.

Vital Healthcare P. Ltd.

Respondent

Appearance:

Shri Mayur Shroff, Advocate for the assessee appellant Shri H.M. Dikshit (AR) for the Revenue respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial)

Date of hearing : 18.03.2015 Date of decision : 18.03.2015

O R D E R No:..

These two appeals are directed against Order-in-Appeal No. AKP/19/NSK/2010 dated 21.01.2010.

2. Assessee is aggrieved by the order on the ground that the first appellate authority has denied them the Cenvat credit of Central Excise duty paid on TMT bars which was used for construction of base of the machinery in interest thereby and also imposition of penalty. While revenue is aggrieved on the ground that the penalty imposed on the appellant is on the lower side and should be equivalent to the amount of credit taken.

3. Heard both sides and perused the record.

4. Ld. counsel submits that identical issue for the earlier period came up before the Tribunal in E/578/09. It is his submission that the said appeal was disposed of by the Tribunal vide Order no. A/356/10/SMB/C-IV dated 15.07.2010 and submits that on merits the matter has been held as squarely covered by the larger bench of the Tribunal in Vandana Global Ltd. 2010 (253) ELT 440 (Tri-LB); and the penalties have been set aside. He produced a copy of the said order.

5. Heard the Departmental Representative who reiterated the finding of the lower authorities.

6. On considering of the submission made by both sides, I find on merits the Cenvat credit availed on duty paid on TMT bars is ineligible to be availed as has been decided by the larger bench in the case of Vandana Global Ltd. (supra). Accordingly, I do not find any merits in the argument put forth by the ld. counsel as to the eligibility to availment of Cenvat credit on TMT bars. The appeal to the extent is rejected. I uphold the orders of the lower authorities to the extent the appellant is required to reverse the Cenvat credit availed on the TMT along with interest.

7. As regards penalty, I do find that this bench in the order dated 15.07.2010 in the appellants own case has set aside the penalties on the ground that the issue was on interpretation and had to be settled at the hands of the Larger bench. In my view, the ratio will apply in this case and accordingly, the penalty imposed on the appellant are liable to be set aside and I do so.

8. Since I have set aside the penalty relying upon the order dated 15.07.2010, I find no merits in the appeal filed by the revenue which is for enhancement of penalty.

9. To sum up, appeal filed by the appellant is partly allowed as above and the appeal filed by the revenue is rejected.

(Pronounced in Court)

(M.V. Ravindran) Member (Judicial)

//SR

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