Case Law Details
Rajashree Polyfil Vs C.C. E. & S.T. (CESTAT Ahmedabad)
Short issue involved in the present case for determination is as to whether the appellant could suo motu take the credit reversed during the litigation. However we noticed that impugned order under challenge in this matter was passed on 18.10.2012 whereas as per the submission of the appellant that disputed amount of Rs. 65,98,211 was already refunded by the Assistant Commissioner, Central GST, Division –X, Vadodara-II, vide Order-In-Original No. 15/Dn-X/NNB/REFUND/19-20 dtd. 11.11.2019. The reversal of entry No. 1109 dtd. 25.03.2011 for filing appeal before the CESTAT in Appeal No. E/595 /2011 against the OIA No. BC/10/SURAT-II/2011 dtd. 08.03.2011 and Reversal of Entry No. 1109 dtd. 25.03.2011 disputed in the present appeal No. E/10141/2013 are same.
9. Under these circumstances, we consider it proper that the matter is remanded to the adjudicating authority to consider these aspects and to decide the matter a fresh after verifying the records /details of the appellant as claimed by them before this tribunal. We make it clear that we have not expressed any opinion as regards the merit or otherwise, hence we keep all the issues open. Further, we also direct the adjudicating authority to give appellant opportunity to present their case before taking a final decision.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This is an appeal filed against Order-In-Original No. 70/Commr./Surat-II/2012 dtd. 18.10.2012 passed by the Commissioner, Customs & Central Excise, Surat –II.
2. Brief facts of the case are that during the course of audit of Appellant’s records, the internal audit party in the month of December 2008 has observed that the appellant had debited an amount of Rs. 1,60,97,664/- vide entry No. 2114 dated 30.09.97
in the RG23A Pt. II register voluntarily towards inadmissible modvat credit availed in respect of inadmissible capital goods i.e. structural channels and cement during the period prior to 1996- 97. A show cause notice was issued to the appellant which was confirmed by the adjudicating authority vide Order-In‑ Original(OIO) dated 15.12.97. Being aggrieved by the said OIO, the Appellant preferred an appeal against the OIO before the Commissioner (Appeals) and an Order-In-Appeal dtd. 26.07.99 was passed that credit on pipes and tubes and wire and cables could be availed and credit on other items disallowed. The Appellant filed appeal before CESTAT against the said OIA. The CESTAT vide order No. A/103/WZB/Ahdbad/06 dtd. 13.11.2006 remanded the matter to the adjudicating authority for fresh consideration in the light of law declared by the Tribunal in the case of Ispat Industries Ltd. and after taking into consideration the factual position. Pursuant to such remand order, Order-InOriginal dtd. 04.02.2008 was passed whereby Cenvat Credit of Rs. 11,28,052/- was denied to the appellant, while the balance credit of Rs. 65,98,211/- was held as admissible. On the basis of OIO dtd. 04.02.2008 appellant have taken credit of an amount of Rs. 65,98,211/- as Cenvat Credit vide their entry No. 81 dtd. 27.03.2008 in their cenvat account without filing any application for refund claim and without submitting any evidence to the effect that principle of unjust enrichment was followed in respect of restored credit amounting to Rs. 65,98,211/- as required under Section 11B of the Central Excise Act, 1944. Accordingly, a Show cause notice was issued to them for recovery of the suomotu credit along with proposal for penalty. In adjudication, the demand was confirmed and the penalty of equal amount was imposed vide impugned order. Hence, the present appeal.
3. Shri Mrugesh Pandya, Ld. Counsel for the appellant submits that Reversal of Entry No. 1109 dtd. 25.03.2011 for filing appeal before CESTAT (E/595/2011) against the OIA No. BC/10/SURAT- II/2011 dtd. 08.03.2011 & reversal of entry No. 1109 dtd. 25.03.2011 against impugned OIO No. 70/Commr/Surat-II/2012 dtd. 18.10.2022 (E/10141/2013) are same. The Hon’ble CESTAT, Ahmedabad vide Order dtd. 03.04.2019 allowed the Appeal No. E/595/2011 by way of remand (by setting aside the OIA No. BC/10/Surat-II/2011 dtd. 08.03.2011) against which the lower adjudicating authority sanctioned and paid the amount of Rs. 65,98,211/- on 11.11.2019 vide order dtd. 11.11.2019 then the subject matter of present appeal (E/10141/2013) in respect of suomotu credit of Rs. 65,98,211/- & its further disposal has became infructuous.
4. He also submits that at the time of credit of Rs. 65,98,211/- the appellant duly informed to the Assistant Commissioner, Division – II, Ankleshwar vide letter dtd. 26.03.2008. Appellant have not suppressed any material fact from the department. The present show cause notice was issued on 22.02.2010 by the department which is totally time barred because the facts of availment of Credit was in knowledge of the department during the material On this ground alone the impugned order deserves to be set aside.
5. He further submits that duty reversed under protest and re-credited by the appellant against the favorable order of adjudicating authority does not attract Section 11B of the Central Excise Act, 1944 and accordingly Appellant was not required to file refund application under Section 11B of the Central Excise Act, He placed reliance on the following decisions.
(i) Commissioner of Central Excise, Surat –II Vs. Vardhman Acrylics Ltd. – 2013 (292)ELT 558 (Tri. –Ahmd)
(ii) Hawkins Cookers Ltd. Vs. Commissioner of Central Excise, Mumbai –III- 2017(346)ELT 298 (Tri,.- Mumbai)
(iii) Lona Industries Ltd. Vs. Commissioner of Central Excise, Raigad – 2015(330)ELT 575 (Tri. –Mumbai)
(iv) Ultra Tech Cement Ltd. Vs. Commissioner of C.Ex.,Tirupati – 2010(261)ELT 696 (Tri. Bang.)
(v) Colgate Palmolive (India) Ltd. Vs. Commr.ofC.Ex., Auranabad- 2017(358)ELT 524 (Tri. Mumbai)
(vi) Bock India Pvt. Ltd. Vs. Commissioner of C.Ex., Vadodara – 2009(241) ELT 251 (Tri. Ahmd.)
(vii) ICMC Corporation Ltd. Vs. CESTAT, Chennai – 2014 (302)ELT 45 (Madras High Court)
6. Shri R.K. Agarwal, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
7. We have carefully considered the submissions made by both sides and perused the record.
8. We find that the short issue involved in the present case for determination is as to whether the appellant could suomotu take the credit reversed during the litigation. However we noticed that impugned order under challenge in this matter was passed on 18.10.2012 whereas as per the submission of the appellant that disputed amount of Rs. 65,98,211 was already refunded by the Assistant Commissioner, Central GST, Division –X, Vadodara-II, vide Order-In-Original No. 15/Dn-X/NNB/REFUND/19-20 dtd. 11.11.2019. The reversal of entry No. 1109 dtd. 25.03.2011 for filing appeal before the CESTAT in Appeal No. E/595 /2011 against the OIA No. BC/10/SURAT-II/2011 dtd. 08.03.2011 and Reversal of Entry No. 1109 dtd. 25.03.2011 disputed in the present appeal No. E/10141/2013 are same.
9. Under these circumstances, we consider it proper that the matter is remanded to the adjudicating authority to consider these aspects and to decide the matter a fresh after verifying the records /details of the appellant as claimed by them before this tribunal. We make it clear that we have not expressed any opinion as regards the merit or otherwise, hence we keep all the issues open. Further, we also direct the adjudicating authority to give appellant opportunity to present their case before taking a final decision. In the result, the impugned order is set aside and the matter is remanded back to Commissioner to decide the issue afresh after following the principles of natural justice.
(Pronounced in the open court on 11.04.2023)
