2011 (6) TMI 327 - AT - Central Excise

Benefit of modvat credit denied in terms of the formula prescribed in terms of the Notification No. 23/2003 - goods procured from 100%EOU - whether CVD referred under Rule 3(7) of CCR 2004 includes only additional duty u/s 3(1) of the Customs Tariff Act 1975 or the same also include 4% additional duty levied u/s 3(5) - Held that - The issue is no more res-integra and stands settled in favour of assessee in the case of M/s. Venkateshwara Precision Components vs. CCE Chennai 2010 (8) TMI 243 - CESTAT CHENNAI - it is fit to remand the matter to original adjudicating authority for fresh decision in the light of the law declared in the above referred judgment - question of limitation is kept open for consideration by the original adjudicating authority in remand proceedings - Stay petition as also appeal get disposed off

Summary

Issues:
1. Denial of modvat credit availed in respect of goods procured from 100% EOU.
2. Contention regarding whether CVD includes only additional duty under Section 3(1) of the Customs Tariff Act, 1975 or also includes 4% additional duty under Section 3(5).
3. Challenge on the grounds of limitation.
4. Permission to raise grounds on merits based on a Tribunal decision.
5. Remand of the matter to the original adjudicating authority for fresh decision.

Analysis:
1. The judgment addresses the issue of denial of modvat credit availed by the appellants in respect of goods procured from 100% EOU. The demand was confirmed against the appellants due to the denial of this benefit, as per Notification No. 23/2003. The demand was issued through a show cause notice in 2008.

2. A key contention raised was whether the Central Value Duty (CVD) includes only additional duty under Section 3(1) of the Customs Tariff Act, 1975, or if it also encompasses the 4% additional duty levied under Section 3(5). The Tribunal had previously settled this issue in another case, which the appellants sought to rely on.

3. The appellants primarily challenged the demand on the grounds of limitation. Although they did not contest the demand on merits before the Commissioner (Appeal), they requested to set aside the impugned order entirely and sought permission to modify their submissions. The advocate argued that the issue had been settled in their favor by a Tribunal decision.

4. The judgment deliberated on whether the appellants should be allowed to raise grounds on merits based on the Tribunal decision mentioned earlier. The learned DR objected to this request, but the judge found that since the matter was decided in favor of the appellants by the Tribunal, they should be permitted to rely on that decision in the interest of justice.

5. Ultimately, the judge decided to remand the matter to the original adjudicating authority for a fresh decision in light of the law declared in the Tribunal's judgment. The question of limitation was left open for consideration during the remand proceedings, and the stay petition and appeal were disposed of accordingly.