TMI Blog2022 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... various types of scraps. Assessee contended that, the demand notice has been issued without any enquiry and investigation in the factory of the assessee and the burden of proof is on the department to show that the goods purchased from SAIL and others have been disposed off without use in their factory. Further, it was contended that the department does not dispute payment of duty on goods purchased from SAIL and others, payment of duty on the final products manufactured by them, there was no revenue loss and therefore, proceedings could not have been initiated against the assessee. The substantial questions of law does arise for consideration in these appeals, more particularly, the question whether the Tribunal without going into the merits of the case and without noting the documents was right in simply passing the order on the basis of the decision in the case of Jai Raj Ispat Ltd. [ 2006 (7) TMI 210 - SUPREME COURT ] and whether the learned Tribunal failed to note that the judgment in the case of Jai Raj Ispat Ltd. was pertaining to a classification issue. The appeals are allowed and the substantial questions of law are answered in favour of the revenue - matters are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take note of the illustration given in the instruction issued by the CBEC. It states that no appeal shall be filed in the high Court if the duty involved does not exceed Rs.10 lakh with or without penalty and interest. In our prima facie reading, the decision whether an appeal should be filed or not shall depend upon the quantum of duty involved and if it does not exceed the threshold limit no appeal should be filed. The learned Standing Counsel has pressed into service decision in the case of J.K.Export Import House (supra). The Hon ble Division Bench, also held that the disputed tax amount and penalty has to be taken into consideration and if it is done so, the appeal is above the monetary limit. In our considered view, the correct interpretation to the circular would be as to whether the duty component exceeds the threshold limit or not, regardless of the fact it is with or without penalty. However, we need not go into the said controversy since there is no bar for this Court to consider an appeal when a substantial question of law arises for consideration. In this regard, the learned Standing Counsel has placed reliance on the decision in the case of Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when a final product duty was paid and accepted by the department then the appellant is entitled for CENVAT credit on input as per the decision of the Hon ble Supreme Court in Jai Raj Ispat Ltd. vs. Commissioner of C. Ex., Hyderabad-IV, 2006 (200) E.L.T. 518 (S.C.). It has extracted paragraph 5 of the said decision and the Tribunal has held that without going into the issue of classification it holds that the assessee is entitled to avail CENVAT credit in accordance with the CENVAT rules. Accordingly, the order of adjudication is set aside. The case of the revenue before us is that the said decision is wholly inapplicable to the facts of the case on hand. They have contended that the judgment in the case of Jai Raj Ispat Ltd. was with regard to classification of `misrolls which is not identical to that of the product dealt with by the respondent assessee. Further, it is the case of the revenue that at least brief reasons ought to have been recorded by the learned Tribunal as to how the decision would apply to the case on hand. After considering the said submission we need to point out that the issue which fell for consideration before the Hon ble Supreme Court was whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 13th February, 2017 pointing out that several inputs would be used for the manufacture of final product and unless the assessee discloses the description and use of the said items, it will not be possible to ascertain whether the same are eligible inputs or not and that the assessee has never disclosed the description and uses of the items against which they have availed the CENVAT credit treating those as inputs until they were asked for on 9th March, 2015 by the concerned Range Officer. In paragraph 6.12 of the order of adjudication dated 13th February, 2017, the authority has held as follows :- 6.12 Now I come to the main allegation raised in the impugned show cause notice. I find that the allegation of the department is that the said Noticee had availed Cenvat credit on TMT Cutting. Square Cobble, MRM Rolls Spoils, Misrolls End cutting, Scrap Melting Scrap treating those as inputs used in the manufacture MS Flat / Bar, MS Channel, MS Round, MS Angle, MS Ribbed Bar etc. On going through the records I find that the Noticee has used the above scraps as inputs which are classified under Tariff Item No. 72044100 in their purchase invoices. I also find that items classi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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