2018 (3) TMI 328 - AT - Central Excise

CENVAT credit - own duty paid goods returned from the customer due to rejection - Rule 57I of erstwhile Central Excise Rules, 1944 - whether the modvat credit is admissible on the finished goods itself when it is returned for reconditioned/repaired? - Held that - This issue was decided by the adjudicating authority on different aspect which was not raised in the show cause notice also it is not flowing from the order-in-original, therefore the impugned order is not sustainable - the matter is remanded back to the adjudicating authority to decide the case on merit and only on the issue raised in the SCN after affording an opportunity of personal hearing to the appellant - appeal allowed by way of remand.

Issues involved:
1. Denial of Cenvat Credit on appellant's own duty paid goods.
2. Rejection of appeal by Commissioner (Appeals) due to procedural lapse.
3. Allegation of not following Rule 173H of the Central Excise Rules, 1944.
4. Ex-parte order-in-original passed without show cause notice receipt.
5. Admissibility of modvat credit on appellant's own finished goods for repair.

Analysis:

1. Denial of Cenvat Credit on appellant's own duty paid goods:
The appellant had taken Cenvat Credit on their own duty paid goods that were returned by the customer due to rejection. The issue arose when the show cause notice alleged that the credit on the appellant's own final product was not allowable as per Rule 57I of the Central Excise Rules, 1944. The adjudicating authority denied the modvat credit totaling to ?1,50,740. The Tribunal found that the denial was based on a different aspect not raised in the show cause notice or the order-in-original, rendering the impugned order unsustainable. The matter was remanded back to the adjudicating authority for a decision on merit based on the issue raised in the show cause notice.

2. Rejection of appeal by Commissioner (Appeals) due to procedural lapse:
The Commissioner (Appeals) rejected the appeal citing procedural lapses, specifically the appellant's failure to follow the procedure prescribed under Rule 173H of the Central Excise Rules, 1944. However, the Tribunal noted that the Commissioner decided the appeal on grounds different from those in the show cause notice and the order-in-original. As such, the impugned order was deemed unsustainable, and the appeal was allowed by way of remand for a fresh decision based on the issue raised in the show cause notice.

3. Allegation of not following Rule 173H of the Central Excise Rules, 1944:
The dispute included an allegation that the appellant did not adhere to Rule 173H of the Central Excise Rules, 1944. The Tribunal observed that the Commissioner's decision was based on grounds not raised in the show cause notice, leading to the order being set aside for lack of sustainability. The matter was remanded for a proper consideration of the issue raised in the notice.

4. Ex-parte order-in-original passed without show cause notice receipt:
The appellant contended that they did not receive the show cause notice, which resulted in an ex-parte order-in-original being passed. This lack of opportunity to respond and the absence of a personal hearing were highlighted. The Tribunal acknowledged these procedural deficiencies and emphasized the importance of affording the appellant a fair chance to present their case.

5. Admissibility of modvat credit on appellant's own finished goods for repair:
The core issue revolved around the admissibility of modvat credit on the appellant's own finished goods when returned for repair, reconditioning, or remaking. The Tribunal clarified that the adjudicating authority's decision was based on an aspect not raised in the show cause notice or the order-in-original, leading to the order being set aside. The matter was remanded for a fresh consideration solely on the issue raised in the notice.

This comprehensive analysis of the judgment addresses the various issues involved, highlighting the procedural lapses and the need for a fair and just determination based on the issues raised in the show cause notice.

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