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TMI Blog2024 (7) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier decision in their own case C.C.E. S.T. UDAIPUR VERSUS M/S. HINDUSTAN ZINC LTD. [ 2017 (5) TMI 514 - CESTAT NEW DELHI] , covering the subsequent period, where it was held that ' As such there is no removal of inputs or capital goods and there is no question of any reversal under rule 3(5) of the Cenvat Credit Rules 2004. Therefore, credit cannot be denied in this case'. On merits, following the earlier decisions of the Tribunal in Hindustan Zinc, there is no sale and no removal of inputs and capital goods when the assessee supplied the same to the contractor, which was used for mine development activity and, therefore, the provisions of Rule 3(5) are not applicable. In the circumstances, the appellant was not required to rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally a question of fact. For resolving this issue, it would be necessary to scrutinize the contract between appellant and job contractors as also the actual transactions, which have taken place. Admittedly, the Adjudicating Authority has not cared to refer the terms and conditions of the job contractor which could have thrown light upon the interest of the parties and the nature of transaction. Therefore, we are of the view that the adjudicating authority has confirmed the demand against the appellant without looking into the basic evidence i.e. the contract between the parties. Thus, we are unable to sustain the impugned order. Appeal is accordingly accepted and the matter is remanded back to the Commissioner (Adjudication) for de novo adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racts and, therefore, the appellant was required to pay an amount equal to the cenvat credit availed on duty paid on these items under Rule 3(5) of CCR. The show cause notice was adjudicated by the order-inoriginal dated 16.11.2009, whereby the recovery of cenvat credit along with interest and penalty was ordered. On appeal, the Tribunal remanded the matter to consider the actual transaction on the basis of the documents and contract between the parties. In compliance, the impugned order dated 22.05.2023 affirmed the earlier order. 4. Having heard both the sides and perused the records of the case, we find that the learned counsel for the appellant is right in submitting that the issue in the present case is squarely covered by the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As such there is no removal of inputs or capital goods and there is no question of any reversal under rule 3(5) of the Cenvat Credit Rules 2004. Therefore, credit cannot be denied in this case. 5.9 I further find in the show cause notice itself, it had been mentioned that the assessee were purchasing the goods in question and availing cenvat credit on such items and subsequently, supplying them to the service providers. The service providers in turn undertook mine development work at the mines of the assessee from these items; that when supply of the goods to the contractors on chargeable basis was under dispute with the sales tax authorities, the assessee has changed the terms and conditions of the agreement entered with the contractors an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken note of by the Adjudicating Authority and instead of following the same, it was completely ignored on the ground that the said order was not accepted by the Department and an appeal was preferred before the High Court, which was dismissed on 02.09.2019 on the ground of low tax effect. Similarly, in the case of M/s.Bhilai Steel Plant (supra), the appeal has been dismissed by the Supreme Court on low tax effect and on the same ground, the appeal in the case of M/s. Steel Authority of India Ltd. (supra) was dismissed by the Chandigarh High Court. Needless to mention that the dismissal of the appeals by the Higher Forum was not on merits but on account of low monetary effect and in that view, the order of the Tribunal in the case of Hindus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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