2020 (12) TMI 633 - AT - Central Excise

Department's Appeal Dismissed for Lack of Evidence

The Department filed an appeal against the Commissioner (Appeals) order allowing CENVAT credit to the respondent. The Commissioner (Appeals) set aside the ... Maintainability of appeal - preliminary submission has been raised by respondent that the appeal filed by the Department is liable to be dismissed for the reason that the issue raised in this appeal has already been decided by the Tribunal and the order passed by the Tribunal in favour of the respondent has not been set aside in any proceedings - Recovery of CENVAT Credit - only trading of goods and no manufacture. HELD THAT:- Learned authorised representative appearing for the appellant states that he is not aware whether any appeal was filed by the Department against the order dated September 18, 2018 passed by the Tribunal or whether the order has been set aside. The order passed by the Tribunal was against the Department and, therefore, the Department should be aware as to whether any appeal has been filed or not. As the Department has not placed on record any decision setting aside the aforesaid order of the Tribunal, the present appeal filed by the Department deserves to be dismissed - Appeal dismissed. Issues:1. Appeal against Commissioner (Appeals) order allowing CENVAT credit.2. Dispute regarding availment of CENVAT credit by the respondent.3. Allegations of Department regarding non-receipt of semi-finished goods by the respondent.4. Previous show cause notice and order confirming demand of CENVAT credit.5. Tribunal's order allowing CENVAT credit for the previous period.6. Department's appeal against Commissioner (Appeals) order.Issue 1: Appeal against Commissioner (Appeals) order allowing CENVAT creditThe Department filed an appeal challenging the order passed by the Commissioner (Appeals) allowing CENVAT credit to the respondent. The Commissioner (Appeals) set aside the order passed by the Additional Commissioner denying CENVAT credit to the respondent for the period from April 2016 to June 2017. The appeal by the Department was based on the argument that the issue had already been decided in favor of the respondent by the Tribunal in a previous order.Issue 2: Dispute regarding availment of CENVAT credit by the respondentThe respondent, engaged in manufacturing welding electrodes and other products, leased a portion of its factory to another entity, Unit-2, from October 2012. The respondent availed CENVAT credit of duty paid by Unit-2 on semi-finished goods received and discharged excise duty on finished goods cleared to customers. The Department alleged that the respondent did not receive semi-finished goods and cleared fully finished goods to customers.Issue 3: Allegations of Department regarding non-receipt of semi-finished goods by the respondentThe Department initiated an investigation into the respondent's CENVAT credit availment, alleging that the respondent did not receive semi-finished goods from Unit-2. The Department claimed that the goods received were fully finished and directly cleared to customers without any manufacturing process by the respondent.Issue 4: Previous show cause notice and order confirming demand of CENVAT creditA show cause notice was issued earlier for the period from October 2012 to March 2016, seeking to recover CENVAT credit from the respondent. The Principal Commissioner confirmed the demand, but the Tribunal allowed the benefit of CENVAT credit to the respondent, stating that the duty paid exceeded the credit availed, resulting in no loss to the Department.Issue 5: Tribunal's order allowing CENVAT credit for the previous periodThe Tribunal's order in a previous case confirmed the benefit of CENVAT credit to the respondent, emphasizing that even if the process did not amount to manufacture, the duty paid was accepted by the Department, and penalties imposed were set aside.Issue 6: Department's appeal against Commissioner (Appeals) orderThe Department filed an appeal against the Commissioner (Appeals) order allowing CENVAT credit to the respondent for the subsequent period from April 2016 to June 2017. The Commissioner (Appeals) set aside the order of the Additional Commissioner, citing the Tribunal's previous decision in favor of the respondent. The Department's appeal was dismissed as it failed to provide evidence of the Tribunal's order being set aside.This detailed analysis covers the issues involved in the legal judgment, providing an in-depth understanding of the case and the decisions made by the authorities involved.