2014 (9) TMI 66 - AT - Central Excise

Denial of CENVAT Credit - Testing samples - whether the CENVAT credit relatable to samples taken for testing within the factory is liable to be reversed - Held that - Tested samples of copper concentrate were ultimately fed into the primary smelter but the plea was rejected as it was not supported by any documentary evidence. The Assistant Commissioner of Central Excise for the earlier period vide order dated 27.11.2007 dropped the demand after examining the report of the Superintendent. It is seen from the adjudication order that the appellant produced the copies of sample register instead of original documents. It was observed by the adjudicating authority that the register was a prepared one and the appellant had not convinced the adjudicating authority as to its genuineness. appellant should be given a reasonable opportunity to produce the original register before the adjudicating authority. It is also noted from the earlier adjudication order that the Superintendent of Central Excise verified the register and the demand was dropped on the basis of the verification report of the Superintendent. So, the adjudicating authority should proceed on the basis of the verification report of the Superintendent as it was done for the earlier adjudication order. Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Whether the CENVAT credit relatable to samples taken for testing within the factory is liable to be reversed.

Detailed Analysis:
The appellant, engaged in manufacturing various products falling under specific Chapter Headings, availed CENVAT credit on inputs, capital goods, and input services. The issue in question revolved around the disallowance of CENVAT credit amounting to a specific sum wrongly taken for sample removal for testing during a particular period. The adjudicating authority disallowed the credit, imposed interest and penalty, a decision upheld by the Commissioner (Appeals).

The appellant's counsel argued that the tested samples were indeed utilized in the manufacturing process, specifically in the primary smelter, challenging the Department's allegation that the samples were not utilized. Acknowledging past discrepancies in maintaining sample registers, the counsel highlighted previous instances where proceedings were dropped by the Assistant Commissioner, suggesting a re-examination based on proper documentation.

On the contrary, the Revenue's representative contended that the issue had been previously decided against the appellant by the Tribunal due to the lack of supporting registers. Emphasizing the trivial amount involved, the Revenue suggested dismissing the appeal under the Central Excise Act.

Upon review and considering the recurring nature of the issue, the judge noted past instances where demands were dropped by the Assistant Commissioner. The judge highlighted discrepancies in the appellant's submission of sample registers and emphasized the need for authentic documentation to support their claims.

In the final decision, the judge directed the appellant to produce the original register before the adjudicating authority for a fair assessment. Referring to the previous verification report by the Superintendent, the judge instructed the adjudicating authority to base their decision on this report. Consequently, the impugned order was set aside, and the appeal was allowed for a fresh decision, emphasizing the appellant's right to a reasonable opportunity for a hearing before any final order is passed. The appeal was allowed by way of remand for further review and consideration.