2015 (10) TMI 289 - AT - Central Excise

Recovery of CENVAT Credit - Trading of goods - Held that - On the major portion of the demand the Ld. Commissioner has proceeded on the premise that the appellant are engaged in trading of the goods and they have wrongly availed CENVAT Credit on input services used in carrying out the trading activities. The claim of the appellant on the other hand is that the softwares down loaded from the overseas supplier have been used in or in relation to the manufacture of the dutiable goods. - in the interest of justice, it is prudent to remit the case to the Ld. Commissioner to decide the issue afresh taking into consideration all evidences and the issues raised by the appellant in their reply to the show cause notice. credit. Consequently, the impugned order is set aside and the matter is remitted to the Ld. Commissioner for deciding the issue afresh on merit. - Decided in favour of assessee.

Summary

Issues: Appeal against Order-in-Original regarding admissibility of CENVAT Credit on input services used in trading of goods.

Analysis:
The appellant, engaged in manufacturing telecommunication equipment, faced a demand for recovery of CENVAT Credit amounting to Rs. 3,67,37,879 for allegedly violating CENVAT Credit Rules from April 2006 to June 2009. The dispute centered on the admissibility of credit on input services used in trading activities. The appellant contended that software downloaded from overseas suppliers was utilized in manufacturing dutiable goods, not for trading, making the credit admissible. The Commissioner, however, proceeded on the premise that the appellant was engaged in trading activities, leading to the demand confirmation and penalty imposition. The appellant argued that the Commissioner did not consider their submissions adequately during adjudication, especially regarding evidence of software usage in manufacturing. The Revenue reiterated the Commissioner's findings, emphasizing that the evidence presented to the Tribunal was not before the Commissioner during adjudication, suggesting a remand of the case for further consideration.

The Tribunal, after hearing both parties and examining the records, observed the discrepancy in the Commissioner's premise and the appellant's claim regarding the software usage. The appellant's detailed reply to the show cause notice highlighted the direct use of downloaded software in manufacturing activities, supported by invoices and evidence. Acknowledging the lack of all evidence before the Commissioner during initial adjudication, the Tribunal deemed it necessary to remit the case for a fresh decision. The order was set aside, and the matter was remanded to the Commissioner to reevaluate the issue on merit, considering all evidence and submissions. To expedite the process, a time frame of four months was set for completion of adjudication, with a directive for a fair hearing to the appellant. The appeal was allowed by way of remand, keeping all issues open for further consideration.