2011 (11) TMI 326 - AT - Central Excise

Availment of duty paid on rejected goods - rejected goods sent back under the cover of delivery challan accompanied by invoices originally issued - show cause notice alleged that delivery challan cannot be considered to be a duty paying document for the purpose of credit - original adjudicating authority accepted the position, but denied the credit on the ground that goods supplied under invoices and delivery challan issued by the customers are different appeal rejected by Commissioner (Appeals) without dealing the appellant s plea Held that - The legal issue having been decided in favour of the assessee by the original authority it was not open to the Commissioner (Appeals) to reject the appeal on the same very ground without there being any cross appeal by the Revenue. As such, only issue required to be decided is as to whether the returned goods are same goods which were originally cleared by the appellants. Inasmuch as the appellants did not get an opportunity to establish the same (as there was no allegation in the show cause notice), the matter is remanded back to the original adjudicating authority for verification and reconsidering the appellants claim.

Summary

Issues Involved:
Claim of credit on duty paid for returned goods under delivery challan without duty details.

Analysis:
The appeal involved a dispute regarding the appellant's claim of credit on duty paid for goods returned under a delivery challan without duty details. The appellants, engaged in manufacturing electrical stampings and die cast rotors, cleared goods to customers who later rejected and returned them under delivery challans. The appellants took credit of duty paid on the returned goods. The issue arose when the original adjudicating authority accepted the position but denied the credit, stating that the goods returned were different from those originally cleared under central excise invoices. The authority imposed a penalty, leading to the appeal.

During the proceedings, the appellants argued that the invoices issued at the time of original clearance, accompanying the delivery challans, should be considered as duty-paying documents allowing credit. They relied on a Tribunal's decision to support their claim. However, the appellate authority rejected the appeal without addressing the appellant's plea that the goods supplied under invoices and delivery challans were the same. The appellants contended that the findings on the returned goods' identity were beyond the show cause notice's scope, as there was no such allegation initially made.

The Revenue's representative argued that verifying whether the returned goods were the same as those originally cleared was necessary, even without a specific allegation in the show cause notice. The advocate for the appellants expressed readiness to prove the goods' identity before the original adjudicating authority. The Tribunal agreed with the appellant, stating that the Commissioner (Appeals) erred in rejecting the appeal without a cross-appeal by the Revenue. The only issue to be decided was whether the returned goods were the same as those originally cleared. As the appellants were not given an opportunity to establish this due to the absence of an allegation in the show cause notice, the Tribunal remanded the matter to the original authority for verification, ensuring the appellants would have a chance to prove the goods' identity.

In conclusion, the Tribunal set aside the impugned order, emphasizing the need to verify the identity of the returned goods and reconsider the appellant's claim. The stay petition and appeal were disposed of accordingly, with the matter remanded for further proceedings.