2012 (10) TMI 74 - AT - Central Excise

CENVAT Credit of duty paid by an EOU - restricting the Credit to the amount actually paid by applying the effective rate of duty - Held that - As the adjudicating authority has not considered the submissions made by the appellant in its correct perspective remand the matter back to the adjudicating authority to reconsider the issue afresh - in favour of assessee by way of remand.

Summary

Issues involved: Appeal against Order-in-Original regarding availment of CENVAT Credit by the appellant of duty paid by an EOU.

Analysis:
- The Stay Petitions and appeals were directed against Order-in-Original No.27 & 28 DEM/VAPI/2011. The issue involved in both cases was identical and related to the availment of CENVAT Credit by the appellant of duty paid by an EOU. The Tribunal decided to dispose of both cases by a common order due to the similarity of the issue. The applications for waiver of the amounts involved were allowed, and the appeals were taken up for disposal.

- The appellant argued that the first appellate authority had erred in restricting the CENVAT Credit to the amount actually paid by applying the effective rate of duty. The appellant referred to a decision of the Tribunal in a similar case to support their argument. Additionally, the appellant contended that the adjudicating authority had wrongly denied the credit of education cess and secondary/higher secondary cess based on the timing of the notification allowing credit for these cess.

- The Departmental Representative (D.R.) argued that the adjudicating authority had not considered the submissions made by the appellant as they were not explicitly presented. However, when the appellant pointed out that the formula was not considered, the D.R. suggested remanding the matter back to the adjudicating authority for reconsideration. The appellant did not object to this proposal.

- The Tribunal noted that both parties agreed that the adjudicating authority had not considered the appellant's submissions correctly. Therefore, the Tribunal set aside the impugned orders and remanded the matter back to the adjudicating authority to reconsider the issue afresh while following the principles of natural justice. The Tribunal clarified that it had not expressed any views on the merits of the case and left all issues open for the adjudicating authority to reconsider.

- Ultimately, the appeals were allowed by way of remand, providing an opportunity for the adjudicating authority to re-examine the matter in light of the submissions made by the appellant.