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2021 (10) TMI 433 - AT - Central ExciseCENVAT Credit - packing material - common input used in exempted goods as well as taxable goods - non-maintenance of separate records - non-submission of proper CA certificate - Rule 6 of Cenvat Credit Rules, 2004 - maintainability of appeal u/s 35 of Central Excise Act, 1944 - HELD THAT - The Commissioner was absolutely wrong while rejecting the application of the appellant on the ground that the SCN has been issued as per clause 73 of the Finance Act, 2010. It is independent matter to rule 6 to be settled even if either the SCN was issued or any order was passed or any appeal is pending before any forum therefore, only because the SCN was issued commissioner should not have rejected the application of the appellant. Non-submission of proper CA certificate - HELD THAT - The same could have been advised to the appellant for submitting the correct CA Certificate. The matter is remanded to the concerned commissioner to re-decide the application dated 31.08.2010 filed by the appellant, irrespective the issuance of SCN. The appellant may be given opportunity to submit the proper CA Certificate, if required - appeal allowed by way of remand.
Issues:
1. Rejection of application for settlement under Clause 73 of Finance Act, 2010. 2. Appeal against the rejection of application before Commissioner (Appeal). 3. Merits of rejecting the application based on the issuance of Show Cause Notice (SCN). 4. Requirement of proper CA certificate for the application. Analysis: 1. The appellant had availed Cenvat credit for packing material used in exempted goods without maintaining separate records. The department issued a Show Cause Notice demanding the payable amount under Rule 6 of Cenvat Credit Rules, 2004. The appellant's application to settle the case under Clause 73 of Finance Act, 2010 was rejected by the Learned Commissioner, and the appeal before Commissioner (Appeal) was deemed not maintainable under section 35 of Central Excise Act, 1944. The rejection was based on the grounds that since the SCN was issued, the application could not be accepted. However, the Tribunal found this reasoning flawed, stating that the application could be considered independently of the SCN issuance. 2. The Tribunal set aside the impugned order and remanded the matter to the concerned commissioner for re-decision on the appellant's application dated 31.08.2010. The Tribunal emphasized that the application should be reconsidered irrespective of the issuance of the SCN, and the appellant should be given the opportunity to submit the proper CA Certificate if required. The Tribunal highlighted the importance of providing the appellant with a sufficient opportunity for a personal hearing before deciding on the application. 3. The Tribunal found that the Commissioner was incorrect in rejecting the application solely based on the issuance of the SCN. The Tribunal clarified that the settlement under Rule 6 could proceed regardless of the status of the SCN, any existing orders, or pending appeals. The Commissioner's decision to reject the application on this ground was deemed erroneous, and it was emphasized that the appellant should have been advised to submit the correct CA Certificate instead of outright rejection. 4. The appeal was allowed by way of remand to the commissioner of Central Excise, Customs, and Service Tax in Daman. The Tribunal's decision focused on ensuring a fair reconsideration of the appellant's application, emphasizing procedural fairness and the appellant's right to present their case adequately before the concerned authority.
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