TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 44
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....g order of Tribunal reported as 2003 (161) ELT 589 (Tri. Chennai). These two appeals also relate to the period July 1994 to January 1996 covered by denovo orders No. 8/2014 and the period August 1996 to January 1997 covered by the Order No. 9/2014. Elaborate argument having been made by both sides on these two appeals, those are taken up first to deal in detail for appreciation of common cause in all the appeals and result thereof applied to other 20 appeals having arisen out of similar cause of action and argument made in these two appeals adopted by both sides for those appeals. HISTORY OF THE CASE 3.1 Hon'ble Supreme Court dismissed civil appeals of the assessee preferred against the Final Order No. 301/2003 dated 2.5.2003 of the Tribunal reported in 2003 (161) ELT 589 (Tri. Chennai) without interference. While dismissing the appeals, Apex Court noticed that the appellant was manufacturer of certain machines in its own factory and those were exported to Vietnam for setting up sugar plant thereat. While the manufactured machines were exported, certain other equipments purchased from outsiders were also exported without using the same in manufacture nor even unpacking or unwrapp....
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....nnai), the Board was conscious that the appellant was merchant exporter in respect of the goods supplied outside India. 4. On the aforesaid premises, when the order of the Tribunal was upheld by the Apex Court dismissing the civil appeal of the assessee, the direction of the Tribunal for re-computation of the MODVAT credit irregularly availed and penalty if any imposable was carried out by the learned adjudicating authority vide two re-adjudication orders No. 8/2014 and 9/2014 both dated 29.4.2014. Those two orders have been appealed before Tribunal by appellant in these two Appeals registered as Nos. E/41740 & 41741/2014. ARGUMENTS OF APPELLLANT 5.1 Arguing on behalf of appellant, learned counsel Shri S. Manickam submits that the goods which were bought out were recorded in the statutory record. Some of such goods were inputs and some were capital goods and necessary declarations in that regard were filed before the jurisdictional Authority from time to time as per requirement of law and those were accepted by the Authority and such evidence is borne by public record. In respect of inputs, appellant recorded the MODVAT credit of the excise duty paid thereon under Rule 57F and R....
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....Rule 57F and 57I for the inputs recorded and law relating to capital goods credit under Rule 57Q, 57S and Rule 57U of the MODVAT Rules shall be applied. Therefore, for quantification of MODVAT credit taken on both types of goods is necessary following the law under concerned Rule and utilization of credit if any, is ascertainable. Hence, verification of statutory record shall result in proper application of law. 5.4 According to the learned counsel, if a thorough enquiry in above manner is made, that shall reveal the status of credit and utilization if any, thereof. When declarations were filed as to receipt of the input and export thereof, that rendered knowledge to the Department about its modus operandi since appellant did not make suppression of any material fact. In absence of any deliberate suppression and intention to cause evasion, part of the period in the proceeding covered by denovo order No. 8/2014 is time barred. This aspect needs thorough examination which was not done. There was mis-conception of fact and law by the authorities below. He fairly submitted that the Apex Court judgment has not dealt with the time bar aspect. But plea in that regard was before the Apex ....
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....he plant and machinery were immovable in character. On such erroneous premise, Tribunal came to the conclusion that there was no capital goods. He relies on the decision of the Hon'ble Supreme Court in the case of Sirpur Paper Mills Ltd. Vs. Collector of Central Excise, Hyderabad 1998 (97) ELT 3 (SC) to submit so. ARGUMENTS OF REVENUE 6.1 Revenue on the other hand submits that when the appellant successively failed before Tribunal and also before the Apex Court, there is no further scope for the appellant to argue before Tribunal on any aspect of the matter. Hon'ble Supreme Court having dismissed the civil appeal of the assessee holding that there cannot be interference to the decision of the Tribunal that means both on fact and law the assessee fails to argue before Tribunal today against the order which has given effect to the order of the Tribunal reported in 2003 (161) ELT 589 (Tri. Chennai). 6.2 It was also submitted by Revenue that the bought out goods were not capital goods. Therefore, that may be only input. Once input is not used in the manufacture, there is no question of grant of MODVAT credit. Learned adjudicating authority in the denovo order has rightly demanded du....
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....lity of penal provision if any under Rule 57I and 57S of Central Excise Rules, 1944. Therefore, adjudicating authority is directed to afford reasonable opportunity of hearing to the appellant within three months from the receipt of this order for segregation of the input credit and capital goods credit if any availed verifiable from statutory record and verify the concerned declarations filed in that regard before the jurisdictional authority. If such detailed exercise is done, the authority may precisely work out the respective credits for applicability of the law distinctly appearing in two different Rules i.e., Rule 57I and Rule 57S of the Central Excise Rules, 1944. 7.3 It was brought to the notice of the Bench by the learned counsel that there was sufficient amount of input and capital goods credit in the statutory record of the appellant and there was no utilization of credit availed in respect of bought out items exported. This being a matter of record, such plea shall be examined by the adjudicating authority to ascertain the quantum of the credit utilized by the appellant for the reason that Rule 57I and Rule 57U intend to disallow unutilized credit and utilized credit to....
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....to be capital goods. If claimed that shall be dealt in accordance with law. 7.8 We make it clear that our decision on the re-adjudicated order No. 8/2014 and 9/2014 dated 29.4.2014 appealed is within the four of the Apex Court judgment. We hope that the appellant shall cooperate with the adjudicating authority producing the statutory record and copies of declaration for his verification and segregate the goods supported by declarations verifiable from statutory record as directed herein before. The authority granting fair opportunity of hearing shall within three months from the last date of hearing shall pass appropriate order. 7.9 The appellant is also directed to make an application to the adjudicating authority to fix the hearing as soon as it receives the copy of this order and provide all mathematical calculations as well as evidence in support of its calculation for the convenience of examination by learned adjudicating authority without seeking any adjournment. 7.10 It came to our notice that when the stay applications were heard in the present two appeals, there was a direction for predeposit of an amount of Rs. 1,40,36,960/-. The appellant shall not claim any refund of....