9911796707
TMI Blog2019 (3) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by the CESTAT and there was non application of mind. The matter is remanded back for fresh decision which needs to be given after considering the relevant material and CESTAT is expected to give reasoned order in respect of the material available against the assessee - Appeal allowed by way of remand. - FIRST APPEAL NO. 806 OF 2006 - - - Dated:- 1-3-2019 - T.V. NALAWADE AND SUNIL K. KOTWAL, JJ. Mr. D.S. Ladda, Advocate for appellant. Mr. Prasad Paranjape with Mr. J.R. Shah, Advocates for respondent No. 1. JUDGMENT : 1) The appeal is filed against judgment and order of proceeding No. A/2227-2229/WZB/05/C-III/EB dated 26.9.2006 of Customs, Excise and Service Tax Appellate Tribunal, (CESTAT) West Zonal B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted products, some of them were used for dutiable products and they were shown to be transferred from Bin Card of exempted products to Bin Card of other products. 4) For deciding the matter against the manufacturer, assessee, the Commissioner considered some instances for illustration and those instances revealed that in some cases inputs were issued directly from Bin Card of common inputs for manufacture of exempted products, though in some cases they were transferred from Bin Card maintained from common inputs to Bin Card maintained for exempted products. The verification revealed that the assessee had not maintained separate inventory and though separate Bin Cards were kept, they were for only some cases and in many cases inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were used for exempted products. (b) They admitted that there was some procedural mistake, but they contended that there was not malafide behind the mistake and there was no intention to evade the duty. (c) They contended that they had availed the total modvat credit of ₹ 11,17,520/- on such common inputs during the period covered by the show cause notice and they had reversed total proportionate credit of ₹ 4,99,572/-, though the amount could have been ₹ 4,67,866/-. (d) The assessee also contended that it is not the case of incorrect availment of modvat credit and provisions of Rule 57I were not applicable. 6) After hearing both the sides, the Commissioner had made order under challenge by giving foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that the appellants have complied with the requirement of the rules. As such, we set aside the impugned order and allow the appeal. 2. Our order as above was pronounced in open court on the date of hearing on 26.9.2005. The aforesaid order of CESTAT shows that no facts are considered and aforesaid circumstances mentioned by the Commissioner are not considered. It can be said that only the contention made by the assessee was accepted as it is. In such a case, the reversal availed before clearance of goods cannot help much as on facts, the liability needs to be ascertained. Though while admitting appeal of the department, three substantial questions of law were formulated, the aforesaid discussion shows that relevant ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of excise leviable thereon or chargeable to nil rate of duty, within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President. This provision also shows that even if it is given retrospective effect, the satisfaction of the Commissioner of Central Excise is involved and he is expected to take decision and further time limit was given for the same. That is not done by the assessee and it can be said that the assessee did not approach the Commissioner as there was the order of CESTAT in his favour. 9) The learned counsel for petitioner placed reliance on the observations made by this Court in the case reported as 2009 (244) E.L.T. 321 (Bom.) [Commissioner of C. Ex. Thane-I Vs. Nicho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 and following cases. (i) 2017 (349) E.L.T. 18 (Bom.) [Commissioner of Central Excise, Mumbai Vs. IVP Ltd.], (ii) 2019 (349) E.L.T. 33 (Bom.) [Commissioner of Central Excise Vs. Nicholas Piramal Ltd.], (iii) 2015 (315) E.L.T. 388 (Mad.) [Commissioner of Central Excise, Chennai-II Vs. ICMC Corporation Ltd.], (iv) 2015 (323) E.L.T. 323 (Mad.) [Commissioner of C. Ex., Puducherry Vs. CESTAT, Chennai], (v) 2016 (336) E.L.T. 477 (A.P.) [Commr. Of C. Ex. Hyderabad-II Vs. SPM Industries India Pvt. Ltd.], (vi) 1996 (81) E.L.T. 3 (S.C.) [Chandrapur Magnet Wires (P) Ltd. Vs. Collector of C. Excise, Nagpur], (vii) 2002 (149) E.L.T. 490 (Tri. - Mumbai) [Pushpaman Forgings Vs. Commissioner of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
