2007 (9) TMI 173 - AT - Central Excise

Stay of operation of Comm.(A) order It is well settled that First Appellate Order shall not be liable to intervened unless it is passed without evidence or perverse In absence of any evidence, this forum reject stay petition/application filed by Revenue.

Issues:
1. Eligibility of Welding Rods for input credit.
2. Legal infirmity in the order of the First Appellate Authority.
3. Stay of operation of the First Appellate Order.
4. Principle of intervention in First Appellate Orders.

Analysis:

Issue 1: Eligibility of Welding Rods for input credit
The appeal before the Appellate Tribunal challenged the eligibility of Welding Rods for input credit. The Revenue contended that the Assessee did not follow the Board's Circular regarding the eligibility of Welding Rods for input credit. It was argued that the decisions of the Tribunal reflected in the Grounds of Appeal made the Order of the First Appellate Authority fatal. The Respondent, on the other hand, argued that the impugned goods were indeed eligible for CENVAT credit, and the Commissioner (Appeals) had thoroughly examined the facts to reach this conclusion. The Tribunal, after hearing both sides and perusing the record, found no grounds to stay the operation of the First Appellate Order. Consequently, the Tribunal rejected the Stay Petition filed by the Revenue, and the Stay Application was dismissed.

Issue 2: Legal infirmity in the order of the First Appellate Authority
The Revenue contended that the order passed by the First Appellate Authority suffered from legal infirmity as the Board's Circular was not followed regarding the eligibility of Welding Rods for input credit. The Respondent argued that the show cause notice issued was vague and lacked specific charges against them, depriving them of the opportunity to defend themselves. The Respondent further argued that the First Appellate Authority had thoroughly examined the facts and correctly concluded that the impugned goods were eligible for CENVAT credit. The Tribunal, after a thorough examination of the arguments from both sides, found no grounds to intervene in the First Appellate Order, as there was no evidence to rebut the findings of the First Appellate Authority. Therefore, the Tribunal dismissed the Revenue's appeal, upholding the decision of the First Appellate Authority.

Issue 3: Stay of operation of the First Appellate Order
After hearing both parties and examining the record, the Tribunal determined that there were no grounds to stay the operation of the First Appellate Order. The Tribunal concluded that the appeal did not call for a stay, and therefore, the Stay Petition filed by the Revenue was rejected, and the Stay Application was dismissed.

Issue 4: Principle of intervention in First Appellate Orders
The Tribunal reiterated the settled principle of law that a First Appellate Order should not be interfered with unless the finding is without evidence or perverse. In this case, the Tribunal found that there was no evidence to rebut the findings of the First Appellate Authority. As a result, the Tribunal held that in the absence of any evidence, they were unable to allow the Revenue's appeal, leading to the failure of the Revenue's appeal.

In conclusion, the Tribunal upheld the decision of the First Appellate Authority regarding the eligibility of Welding Rods for input credit, dismissed the Revenue's appeal, rejected the Stay Petition, and emphasized the principle of intervention in First Appellate Orders only in specific circumstances.

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