2002 (3) TMI 535 - AT - Central Excise

Department denied credit due to procedural lapses; Tribunal dismisses appeal.

COMMISSIONER OF C. EX., TRICHY Versus SHASUN CHEMICALS & DRUGS LTD.

The Department appealed against the Commissioner (Appeals) order that directed verification and extension of credit due to procedural lapses. The ... Appeal to Appellate Tribunal - Appealable order Issues:1. Appeal against Commissioner (Appeals) order.2. Verification of credit entitlement.3. Department's contention on credit entitlement.4. Tribunal's decision on appeal merit.Issue 1: Appeal against Commissioner (Appeals) orderThe appeal was filed by the Department against the order of the Commissioner (Appeals) in which the Commissioner set aside the impugned order and directed the Assistant Commissioner to cause verification and extend the credit. The Commissioner found procedural and technical lapses by the Department and emphasized that the credit cannot be denied as long as it is proved that the goods were duty paid, received in the factory, and used in the manufacture of final products. The Commissioner also noted that there was no warrant for a penalty. The appeal was allowed based on these findings.Issue 2: Verification of credit entitlementThe Assistant Commissioner conducted the directed verification and reported that the assessee produced specific records, including RG 23A Part-I and Part-II, and challans for the movement of goods for job work and return. The dispute arose from the contention that the goods were subsequently received at the Unit in Cuddalore after job work at the Pondicherry Unit. However, after verifying the records, the Assistant Commissioner found that the Challans and Annexure-V provided by the assessee did not contain evidence to support their claim that the processed goods were actually received at the Cuddalore Unit. Consequently, the Department held that the assessee was not entitled to the credit based on this verification.Issue 3: Department's contention on credit entitlementThe Department contended that after the verification, the assessee was not entitled to the credit due to the lack of evidence supporting the claim that the processed goods were received at the Cuddalore Unit. However, the Tribunal disagreed with the Department's contention, stating that if the assessee was not entitled to the credit, the Department should have issued a show cause notice by the Adjudicating authority for further action. The Tribunal emphasized that the Department could not convert the Tribunal into the Adjudicating authority and that an appeal to the Tribunal could only be filed if a person is aggrieved against the Commissioner (Appeals) order. Since the Department had complied with the Commissioner's order, they could not argue that they were aggrieved against the impugned order, and therefore, the appeal was dismissed for lack of merit.Issue 4: Tribunal's decision on appeal meritThe Tribunal held that the Department's argument that the assessee was not entitled to the credit after verification was incorrect. The Tribunal emphasized that the Department should have followed proper procedures, such as issuing a show cause notice if the credit entitlement was in question. Since the Department had already complied with the Commissioner (Appeals) order, they could not claim to be aggrieved against the impugned order and file an appeal. Therefore, the Tribunal found the appeal to be devoid of merit and dismissed it accordingly.