2011 (2) TMI 989 - AT - Central Excise

Tribunal remands case denying re-credit under Notification No. 39/01-CE for verification

The Tribunal remanded the case concerning denial of re-credit to the appellants for specific periods under Notification No. 39/01-CE. The denial was based ... Re-credit - Benefit of Notification No. 39/01-CE dated 31.07.2001 - refund of duty paid in the PLA after exhausting the amount of cenvat credit available - benefit was denied for the earlier periods on the ground that appellants had not furnished correct information from time to time, when called for by the department - Held that:- As for earlier periods Tribunal had taken note of the fact that appellants themselves had written to the department in March 2008 that the information furnished on 04.02.2008 was wrong and even then the original adjudicating authority had passed the order stating that appellants gave different information in March 2008 vis-a-vis letter dated 04.02.2008. The issue was considered in detail and the original adjudicating authority was directed to consider and verify whether the information furnished on 04.02.2008 is correct or not. Even though more than a year has passed since the order was passed by this Tribunal, both the sides did not enlighten us as to what has happened as regards implementation of that order. Since no details as to what action has been taken by the original adjudicating authority as per the directions in the remand order is not known, this matter also is required to be remanded to the original adjudicating authority for taking similar action as directed in their order dated 06.11.2009. Issues:Benefit of Notification No. 39/01-CE availed by appellant for refund of duty paid in PLA, denial of re-credit by appellants for specific periods, grounds for denial based on incorrect information provided, remand order by Tribunal for verification of information, denial upheld by learned Commissioner (Appeals), need for further verification by original adjudicating authority.Analysis:The appellant was availing the benefit of Notification No. 39/01-CE for refund of duty paid in the PLA after exhausting the cenvat credit available. The notification allowed two methods of availing the benefit: either filing an application for refund or claiming it as credit themselves. The proper officer had the authority to deny re-credit if certain conditions were not met.The benefit of re-credit was denied to the appellants for the periods 2006-07, 2007-08, and 2009-10 due to the appellants allegedly not furnishing correct information when required. The denial for the years 2006-07 and 2007-08 was challenged before the Tribunal, resulting in a remand order directing the original adjudicating authority to verify the information submitted by the appellants. However, the denial for the year 2009-10 was upheld by the learned Commissioner (Appeals) based on similar grounds of incorrect information provided.The advocate for the appellants argued that the decision in favor of the appellants for the earlier years should also apply to the subsequent year, as the issue remained the same. The Tribunal noted that the grounds for denial were consistent across the appeals, with the denial based on the appellants allegedly providing false information regarding the installation of plant and machinery. The matter was remanded to the original adjudicating authority for further verification to confirm if the appellants violated the conditions of the notification before being denied the benefit of self-recredit.Given the lack of information on the actions taken by the original adjudicating authority following the previous remand order, the Tribunal decided to remand the matter again for similar verification and actions as directed previously. The appellants were to be given a reasonable opportunity to present their case before a final decision was made by the original adjudicating authority.