2018 (2) TMI 1611 - AT - Central Excise

Scope of SCN - CENVAT credit - Held that - there was no proposal in the show-cause notice for denial of CENVAT credit for the period of demand of duty, therefore it was not a case for the Department that whether the CENVAT credit claimed by the appellant is admissible or otherwise - the issue of CENVAT credit being independent is still open for Department to decide - appeal allowed by way of remand.

Summary

Issues:
- Demand of Central Excise duty on mis-classification of goods
- Claim of CENVAT credit by the appellant

Analysis:
1. The case involved a show-cause notice issued to the appellant for mis-classifying goods and wrongly claiming exemption of nil rate of duty. The Adjudicating Authority confirmed the demand of duty, which was upheld by the Commissioner (Appeals). The appellant did not appeal against this decision. Subsequently, the appellant claimed CENVAT credit, but the department argued that since no appeal was filed against the original order, the CENVAT credit was disallowed.

2. The appellant contended that there was no proposal for denial of CENVAT credit in the show-cause notice. They argued that the Commissioner (Appeals) did not pass any order on their claim for CENVAT credit, so it cannot be considered disallowed. The appellant cited relevant judgments to support their position.

3. The Assistant Commissioner representing the Revenue reiterated the findings of the impugned order, emphasizing the denial of CENVAT credit.

4. The Tribunal, after considering both sides' submissions, observed that there was no proposal in the show-cause notice regarding the denial of CENVAT credit. Since the Commissioner (Appeals) did not pass any order on the CENVAT credit claim, the Tribunal held that the issue of CENVAT credit remained open for the department to decide. Consequently, the Tribunal set aside the impugned order and remanded the case to the Adjudicating Authority to determine the admissibility of CENVAT credit based on the documents to be produced by the appellant.

In conclusion, the Tribunal allowed the appeal by remanding the case for a fresh determination on the admissibility of CENVAT credit, emphasizing that the issue remained open for the department to decide.