In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Application NO. E/ROM/10497-10501/2017-DB in appeal
No. E/1976-1980/2005-DB Appeal No.E/10992-10995/2018-DB
[Arising out of OIO-SUR-EXCUS-000-COM-029-17-18 dated 12.01.2018 passed by the CCE & ST Surat-I]
M/s Mayur Printers
Mayank Rotoplast Industries
Labhubhai Patel Partner
C.C.E.& S.T.- Surat-I
For Appellant: Mr. A. Nainawati (Advocate)
For Respondent: Mr. G. Jha (AR)
HON’BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)
HON’BLE MR. RAJU, Member (Technical)
Date of Hearing:10.09.2018
Date of decision:03.10.2018
Misc Order No. M/ 11100-11104 /2018
Final Order No. A/ 12083-12086 /2018
Vide Order No. A/10908-10912/2017 dated 08.05.2017, the appeals of Mayur Printers, Mayank Rotoplast Industries, Labhubhai Patel, Vikas Agencies and Stylopack were disposed of by remanding the matter to the Commissioner for permitting the benefit of Cenvat Credit in certain cases. All the appellants have filed the application for rectification of mistake on the ground that the said order dated 08.05.2017 permits adjustment of credit only in respect of certain invoices which was denied by the lower authorities, however, no findings was given in respect of cenvat credit lying in their account which also should have been adjusted against the demand of duty. While ROMs were pending before the Tribunal, the lower authority passed order in remand proceedings against the appellant. The appellant had in those proceedings requested the adjudication authority for adjournment as their rectification of mistake application was pending before Tribunal. However the lower authority passed the order. The lower authority denied the benefit of cenvat credit in respect of invoices as no invoices were submitted since the appellants were seeking adjournment of the matter. Aggrieved by the said order in remand, the following four are in appeal:
⦁ Ms. Mayur Printers
⦁ M/s Mayank Rotoplast Industries
⦁ M/s. Vikas Agencies
⦁ M/s. Stylopack.
2. Ld. Counsel for the appellant argued that the order of the Tribunal dated 08.05.2017 fails to consider that apart from the credit in respect of certain invoices which was denied by the lower authority, there was other cenvat credit in the account of appellants which also was required to be adjusted against the demand. In support of his claim, he produced certain RG-23A Part-II accounts that the claim were maintained by them. Ld. Counsel did not press for other grounds in the application for rectification of mistake.
3. Ld. AR resisted the application.
4. We have gone through rival submissions. We find that apart from the cenvat credit denied to the appellant on account of defective gate passes in case of M/s Mayank Rotoplast Industries, the appellant had pleaded they had other credit in the credit of the appellant. It was argued that the amount of demand needs to be finalized after considering the amount of cenvat credit available with the appellants in their credit duly substantiated by necessary documentary evidence. In view of above, the order dated 08.05.2017 is modified and after para 9 in the order dated 08.05.2017 para 9A as follows is inserted:
“9A The appellants will also be entitled to claim the benefit of the cenvat credit available in their records to the extent it is substantiated by the documentary evidence in support of the same. The lower authority would also grant the benefit of all the cenvat credit available (as substantiated by documents) with the appellant at the material time.”
5. The ROM applications are disposed of as above.
6. In so far as the four appeals in respect of the order of Commissioner passed in remand proceedings is concerned, the same is set aside and the matters is once again remanded to the original authority to decide afresh in view of the order of Tribunal dated 08.05.2017 as modified by this above.
7. The appeals are allowed by way of remand. The application for rectification of mistake are disposed of as above.
(Pronounced in the open court on 03.10.2018)
(Raju) (Ramesh Nair)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)