2015 (7) TMI 263 - AT - Central Excise

Rectification of mistake - SSI exemption under Notification No 7/97-CE dt 1.3.1997 - Admissibility of Modvat Credit - Held that - It is observed from Para 2 of the order 2014 (11) TMI 75 - CESTAT AHMEDABAD passed by this Bench that Advocate of the appellant during the course of hearing has raised the issue of admissibility of credit on raw materials and also eligibility of exemption under Notification No 7/97-CE dt 1.3.1997. The issue has not been deliberated by this Bench, therefore, there is an apparent mistake from the face of the record and need rectification. The other two issues of upholding the benefit of cum-duty price and 25% reduced penalty are also related to the outcome of the issues on admissibility of credit on raw materials and exemption under Notification No 7/97-CE dt 1.3.1997. So far as admissibility of cenvat credit on the raw materials used in the manufacture of finished goods, during the relevant period is concerned, the same is required to be examined with respect to the duty paying documents and private/statuary records maintained by the appellant to the effect that such inputs are received in the factory premises and used This can only be done by the Adjudicating Authority for which the appellant has to produce cenvatable documents alongwith the records maintained by them. So far as eligibility under Notification no 7/97-CE dt 1.3.199 is concerned, it is observed that this issue has also not been raised by the appellant before the lower authorities and has to be examined by the Adjudicating Authority based on the satisfaction of the conditions specified in the exemption Notification. - Similarly, option of granting 25% of the reduced penalty under Section 11AC of the Central Excise Act will also depend upon the amount of short levy, if any, quantified by the Adjudicating Authority. ROM filed by the appellant is allowed by way of remand to the adjudicating Authority to decide the issues of admissibility of cenvat credit on inputs received during the relevant period, admissibility of exemption under Notification No. 7/97-CE dt 1.3.1997 and thereafter allow the benefit of cum-duty price and 25% reduced penalty as per provisions contained in Central Excise Act 1994. - Decided in favour of assessee.

Summary

Issues:
1. Admissibility of Cenvat Credit on raw materials
2. Eligibility of exemption under Notification No 7/97-CE dt 1.3.1997
3. Benefit of cum-duty price
4. Non-extending the end option of 25% reduced penalty

Analysis:

Admissibility of Cenvat Credit on raw materials:
The appellant raised the issue of admissibility of credit on raw materials during the hearing, which was not deliberated by the Bench. The Tribunal observed a mistake and decided to rectify it. The Adjudicating Authority is directed to examine the duty paying documents and records maintained by the appellant to determine the admissibility of Cenvat Credit on raw materials used in manufacturing finished goods.

Eligibility of exemption under Notification No 7/97-CE dt 1.3.1997:
The issue of eligibility under this notification was specifically argued by the appellant. However, it was not addressed by the Tribunal. The Adjudicating Authority is instructed to evaluate this issue based on the conditions specified in the exemption Notification.

Benefit of cum-duty price:
The appellant sought the benefit of cum-duty price, which was supported by a Supreme Court judgment. The Tribunal directed the Adjudicating Authority to decide on this benefit after determining the admissibility of Cenvat Credit and exemption under Notification No 7/97-CE dt 1.3.1997.

Non-extending the end option of 25% reduced penalty:
The appellant also requested the option of a 25% reduced penalty under Section 11AC of the Central Excise Act. The Tribunal stated that this would depend on the amount of short levy quantified by the Adjudicating Authority. The appellant's ROM was allowed, and the case was remanded to the Adjudicating Authority to decide on the issues raised.

Conclusion:
The Tribunal acknowledged the appellant's arguments regarding various legal issues and directed the Adjudicating Authority to examine the admissibility of Cenvat Credit, eligibility under a specific notification, cum-duty price benefit, and the option of a reduced penalty. The Tribunal allowed the ROM application and remanded the case for further proceedings.