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M/s. Shrushthi Plastics Pvt. Ltd. Versus The Commissioner of Central Excise, The Hon'ble Customs, Excise And Service Tax Appellate Tribunal

2015 (8) TMI 788 - MADRAS HIGH COURT

Validity of Tribunal's order - Violation of principle of natural justice - Opportunity of hearing not granted - Held that:- Tribunal does not consider the decisions of the Supreme Court, based on which the Original Authority as well as the Commissioner (Appeals) have held in favour of the assessee and there is no discussion on merits on the decision rendered by the lower authorities. The Tribunal, the final fact finding Authority, should go into the merits of the case of the assessee/appellant a .....

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the Appellant : Mr. G Derrick Sam For the Respondent : Mr. A P Srinivas - R1 JUDGMENT (Delivered By R. Sudhakar, J.) This Civil Miscellaneous Appeal is filed by the assessee as against the order passed by the Tribunal raising the following substantial questions of law: 1. Whether the Tribunal was justified in passing Final Order in the appeal without hearing the counsel of the appellant company and thereby violating the principles of natural justice? 2. Whether the Tribunal had erred in not fol .....

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ebulae Healthcare Ltd. [2008 (221) ELT A82 (SC)]?" 2. The brief facts of the case are as follows: The appellant is engaged in the business of manufacture of goods, falling under Chapter sub-heading 3922.90 and 3923.90 of the Schedule to the Central Excise Tariff Act, 1985. The assessee availed the benefit of Notification No.8/99 dated 28.2.1999 in respect of goods falling under chapter sub-heading 3922.20, which are bearing their brand name and in respect of goods falling under chapter sub- .....

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with consequential demand of differential duty of ₹ 7,02,609/- under Section 11A of the Central Excise Act, 1944. The Adjudicating Authority, after due process of law, dropped the proceedings initiated against the assessee. Aggrieved by the said order of adjudication, the Revenue preferred review before the Commissioner of Central Excise for filing an appeal before the Commissioner (Appeals). The Commissioner passed an order directing the Assistant Commissioner of Central Excise, Pondicher .....

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the case of Faridabad Tools Pvt. Ltd. I also find that a Five Member Bench of the Tribunal in the case of Franco Italian Co. Pvt. Ltd. held that: Insofar as the availing of Modvat credits and the full exemption under small scale exemption Notification on different specified goods is concerned, the matter is already covered by the Tribunal's decision in the case of Faridabad Tools Pvt. Ltd. v. CCE - 1993 (63) ELT 759 (Tribunal), which has since merged with the order of the Hon'ble Suprem .....

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ne of merger. In this case, the Tribunal also considered the availment of modvat facility as well as full exemption simultaneously in the case of same specified goods. The Tribunal said drawing the similar analogy, we consider that subject to the reversal of the modvat credit taken with regard to the inputs which were utilised for the manufacture of duty free goods, the manufacturer could avail of the modvat credit as well as the full duty exemption under the applicable small scale exemption Not .....

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xtracted below: Date of hearing Order 20.7.2009 Adjourned to 08.10.09. Issue notice 08.10.2009 No Bench Sitting Adjourned To 9.12.09. Issue notice. 9.12.2009 Adjourned to 9.2.10. 9.02.2010 No Bench Sitting Adjourned to 7.4.10 7.4.10 Adjourned to 4.5.10 at the request of the counsel 4.5.10 Adjourned to 24.8.10 to await Apex Court decision in Nebulae Health Care. 24.8.10 Adjd. To 19.10.10 at the request of the counsel 19.10.10 No Bench Sitting Adjourned to 11.1.11. Issue notice 11.1.11 Adjd. To 8. .....

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whether the respondents can avail Cenvat Credit as well as full exemption under the SSI exemption scheme in respect of same goods. The issue now seems to be no longer res integra, as it has been given a finality by the Hon'ble Supreme Court in the case of CCE, Admedabad Vs. Ramesh Food Products reported in 2004 (174) ELT 310 (S.C). In the said case, it has been held by the Hon'ble Supreme Court that it would not be possible to allow the manufacturer simultaneously to avail Modvat credit .....

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ous availment of Cenvat credit and full exemption under the SSI scheme. Hence, consequently, the demand of duty raised in the Show Cause Notice to the extent of ₹ 7,02,609/- is confirmed along with interest as payable under the law. However, considering the disputed nature of the issue, it is ordered that no penalty be imposed on the respondent-assessee. 5. Aggrieved by the said order of the Tribunal, the appellant/assessee is before this Court raising the above-mentioned substantial quest .....

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earned counsel on record and that he had gone to Trivandrum. The said junior counsel has filed an affidavit before us to this effect and supporting document, namely, travel tickets of Mr.Hari Radhakrishnan evidencing the travel. This is enclosed as document in page Nos.88 to 91 of the typed set of papers before us. He also submits that the case was adjourned from time to time for various reasons and not due to the non-cooperation of the appellant. The case of Nebula Health Care was pending befor .....

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ted the order of the Tribunal. 8. Heard learned counsel appearing for the appellant and the learned Standing Counsel appearing for the respondent and perused the materials placed before this Court. 9. The short issue that the learned counsel for the appellant pleads is that no opportunity has been given by the Tribunal to the assessee to address the case and therefore great prejudice is caused. We find from the copy of the note sheet pertaining to this case before the Tribunal that the case was .....

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