TMI Blog2016 (11) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... has assured that full cooperation will be extended to the adjudicating authority. Credit amounting to ₹ 2,73,450/- availed on invoices not issued in the name of appellant - Held that: - it appears that the issue needs fresh adjudication. Accordingly, we remand the matter back to the adjudicating authority to verify the ECC code and address and utilisation of the credit and use of the goods. These factual aspects are not emerging from the impugned order. Hence, we set-aside the impugned order and remand the matter to the adjudicating authority on this issue who will decide denovo after providing an opportunity of hearing to the appellant as per law. The next issue is regarding credit amounting to ₹ 11,90,941/- which was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(A)(i) and (ii) of CCR - Held that: - it appears that the utilisation of subject goods is not clear, when it is so then we set-aside the impugned order and remand the matter on this issue also to the adjudicating authority. The adjudicating authority shall provide an opportunity of hearing to the appellant as per law. The demand is not time barred as already discussed by the Commissioner (Appeals). Appeal allowed by way of remand. - Excise Appeal No. 58606 of 2013 - Final Order No. 54971 / 2016 - Dated:- 9-11-2016 - Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Sh. Rahul Tangri, Advocate for the appellant Sh. M. R. Sharma, AR for the Respondent ORDER Per Justice ( Dr. ) Satish Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to the 50% credit of the initial year, the assessee became entitled to the remaining 50% of the credit available in the following financial year and thus the assessee was entitled to 100% credit on the date of the appellate order. It is not the case of the Revenue that the credit wrongly availed by the assessee has been utilised in the initial financial year. If the credit of the subsequent financial year wrongfully taken in the initial financial year if not utilised till the commencement of the subsequent financial year, then no prejudice is caused to the Revenue and the decision of the Tribunal deserves acceptance. By following the ratio laid-down by the Bombay High Court, as the facts are not clear in the impugned order, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emerging from the impugned order. Hence, we set-aside the impugned order and remand the matter to the adjudicating authority on this issue who will decide denovo after providing an opportunity of hearing to the appellant as per law. 6. The next issue is regarding credit amounting to ₹ 11,90,941/- which was not admissible to the appellant since the iron steel items such as MS channel/ flat/ beams/ angles were not input or capital goods. The Commissioner has denied the benefit. From the record, it appears that the assessee has utilised these items in the manufacture of cage for PMCC (P), MCC, Panels, Grid Rotor Resistance etc. which are stated to be capital goods. The period is after 07.07.2009, when by introducing the amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice as well as the impugned order passed by the lower authority. After hearing rival submissions of both sides it appears that the adjudicating authority has relied on the decision of the Larger Bench in the case of Vandana Global Ltd. vs. Commissioner -2010 (253) ELT 440 (Tri. LB,) where it was observed that the amendment is applicable retrospectively but the said decision of the Tribunal was set-aside by the Gujarat High Court in the case of Mundra Ports Special Economic Zone Ltd. vs. CCE C 2015 (39) STR 726 (Guj.) where it was observed that- 8. Ld. Counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited vs. Commissioner of Central Excise, Raipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,47,678/-, we are of the view that it needs to be re-examined in the light of the decision of the Gujarat High Court (supra) as well as the charge made in the show cause notice. 8. The next issue of cenvat credit amounting to ₹ 22,70,019/- which was denied to the appellant by the adjudicating authority by referring to the definition of capital goods under Rule 2(a)(A)(i) and (ii) of CCR, ld. Counsel submits that credit is admissible on cement as input as the same has been used in the fabrication of capital goods like machinery, silos etc. Further, he submits that credit on cement has been availed only during the period prior to 07.07.2009. 8.1 On the other hand, ld. AR for the Revenue submits that the cement has been used for f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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