Case Law Details
Chettinad Cement Corporation Private Limited Vs Commissioner of G.S.T. and Central Excise (CESTAT Chennai)
CESTAT restore the matter to the file of the Adjudicating Authority who shall pass a speaking order as per law after granting reasonable opportunities to the appellant and since the matter pertains to an earlier period which has travelled twice before this forum, the Adjudicating Authority shall pass a de novo order within a time-frame of 90 days from the date of receipt of this order by the respective Commissionerate.
FULL TEXT OF THE CESTAT DELHI ORDER
Both these appeals are filed against the common impugned Order-in-Appeal Nos. 17 & 18/2022 dated 28.06.2022 passed by the Commissioner of G.S.T. and Central Excise (Appeals), Madurai, wherein the CENVAT Credit availed by the appellant, which were held to be improper by the Adjudicating Authority and therefore ineligible, came to be upheld.
2. Heard Ms. Ranjani Sivaraman, Learned Advocate for the appellant and Smt. Sridevi Taritla, Learned Additional Commissioner for the Revenue.
3.1 Learned Advocate for the appellant would submit at the outset that this is the second round of litigation before this forum. She would refer to the Final Order Nos. 43388 to 43390 of 2017 dated 27.12.2017 passed by this Bench in the first round, whereby this Bench was pleased to remand the matter back to the file of the Adjudicating Authority with specific directions to take into account the submissions and contentions, including various judicial pronouncements, with a liberty to the appellant to produce any additional evidence in support of their claim. She would further refer to paragraph 5.2 of the Final Order of this Bench (supra) wherein the conclusion drawn by the First Appellate Authority has been held to be misconceived and that the facts of the case are pari materia with the facts of M/s. Ultra Tech Cement Ltd. v. Commissioner of Central Excise, Jaipur-II [2014 (34) S.T.R. 426 (Tri. – Del.)] and M/s. Birla Corporation Ltd. v. Commissioner of Central Excise, Lucknow [2014 (34) S.T.R. 589 (Tri. – Del.)]
3.2 Further, she would contend that this Bench was pleased to take cognizance of the pleadings that the work orders issued by the appellant also incorporated the collection of fly ash and transportation to their manufacturing premises, which limited fact was directed to be ascertained and the matter came to be remanded to the file of the Original Authority.
3.3 She would further refer to the de novo Order-in-Original No. 03/2021 dated 23.02.2021 wherein the Adjudicating Authority himself has reproduced copies of the work orders in which the job description involves “operation and maintenance charge for dry fly ash collection system…”, which includes the transportation of the same. She would therefore conclude that the denial of CENVAT Credit and demanding the tax thereon was clearly uncalled for since the Order-in-Original has been passed without adhering to the directions of this Bench.
4. Per contra, Learned Additional Commissioner for the Revenue supported the findings of the lower authorities. She would further submit that an opportunity to furnish supporting documents, as per the directions of this Bench, was provided to the appellant, but the same having not been done, the Adjudicating Authority has proceeded on the basis of available materials and that therefore, there was no error in the orders of the lower authorities.
5. After hearing both sides I find that a common issue is involved in both the appeals, namely, the denial of CENVAT Credit on the ground of alleged irregular availment of CENVAT Credit and demanding of duty thereon and hence, both the appeals are considered for common disposal.
6.1 Having heard both sides and having perused both the orders of the lower authorities as well as the remand order of this Bench, I am of the view that the Original Authority has not followed the directions of this Bench inasmuch as there was a specific direction by this Bench to take into account the submissions, etc., in paragraph 2 and 3 of the said order, which refers to various judicial pronouncements. Moreover, there is also an observation that in respect of two of the judicial pronouncements, the facts were more or less similar to the one in the case on hand. The Bench further permitted the appellant to produce any additional evidence, in support, but the same was not a direction.
6.2 In the de novo order, I do not find any reference to the binding precedents contained in such judicial pronouncements and moreover, I find merit in the contentions of the Learned Advocate for the appellant that the job description in the work order was referring to “operational and maintenance charge for dry fly ash collection system…”, which is contrary to the conclusion drawn by the Adjudicating Authority at paragraph 14.5 of the Order-in-Original dated 23.02.2021
7. Thus, the Order-in-Original cannot stand as the same is passed not only without adhering to the directions of this Bench, but also omitting to properly take note of the contents / job description in the work orders reproduced by him. In view of the above serious irregularity in the Order-in-Original, the impugned order which has sustained the same cannot be sustained. Accordingly, the impugned order is set aside. The matter is once again restored to the file of the Adjudicating Authority who shall pass a speaking order as per law after granting reasonable opportunities to the appellant and since the matter pertains to an earlier period which has travelled twice before this forum, the Adjudicating Authority shall pass a de novo order within a time-frame of 90 days from the date of receipt of this order by the respective Commissionerate. The appellant shall also cooperate by participating in the de novo adjudication proceedings. All contentions are left open.
8. The appeals are treated as allowed, by way of remand.
(Order pronounced in the open court on _20.12.2022)
