2006 (10) TMI 18 - AT - Central Excise

Central Excise Audit objection No protective demands should be raised on the basis of audit objections which are contrary to CBEC circular Impugned order set aside

Summary

Issues:
1. Correctness of the impugned order of the Assistant Commissioner.
2. Setting aside and remanding the order due to an audit objection.
3. Appellant's appeal against the Commissioner (Appeals) order.
4. Dispute on the appellant's entitlement to benefit of Modvat credit.
5. Interpretation of CBEC Circulars and subsequent Circular No. 674/65/2002-C.X.
6. Consistency with Board's instructions and circulars.
7. Decision to set aside the impugned order and restore the order of the Assistant Commissioner.

Analysis:
1. The Appellate Tribunal noted that the Commissioner (Appeals) did not doubt the correctness of the Assistant Commissioner's order on merits. However, the Commissioner set aside the order and remanded it to the original adjudicating authority due to an audit objection, suggesting that the issue should have been kept pending until the objection was resolved.

2. The appellant challenged the Commissioner (Appeals) order, highlighting that there was no dispute on the merits regarding the appellant's entitlement to the benefit of Modvat credit for capital goods. The appellant argued that subsequent Circular No. 674/65/2002-C.X. clarified that no show cause notices should be issued based on CERA objections contrary to Board instructions.

3. The Tribunal agreed with the appellant's contention, emphasizing the importance of consistency with Board instructions and circulars. Referring to the Circular dated 1-11-2002, the Tribunal highlighted the Apex Court's stance on the legal backing of Board instructions and the need to avoid raising protective demands based on objections contrary to Board circulars.

4. Given the settled matter in favor of the appellant on merits and the prohibition on raising demands based on CERA objections contrary to Board circulars, the Tribunal concluded that the Commissioner (Appeals)'s decision to keep the matter pending was incorrect. Consequently, the Tribunal set aside the impugned order and reinstated the Assistant Commissioner's order, allowing the appeal in favor of the appellant.