- (1.) THE order dated 26th November 2013, passed by the Customs, Excise & Service Tax Appellate Tribunal, East Regional Bench, Kolkata, is the subject matter in this writ petition.
(2.) THE order, imposing duty upon the petitioner, is assailed before the Tribunal by the petitioner. In the said appeal, an application, seeking waiver of the pre -condition deposit of duty, was taken out. The Tribunal, as it appears, has proceeded to pass an order on the basis of a Larger Bench judgment of the Tribunal, rendered in the case of Vandana Global Limited -vs - Commissioner of Central Excise, Raipur, reported in 2010 (253) E.L.T. 440 (Tri. -LB), and directed deposit of 25% of the duty imposed by the assessing officer. According to the petitioner, the judgment, rendered in the case of Vandana Global Limited (supra), is no longer a good law in view of the judgment rendered by the Supreme Court in the case of Commissioner of Central Excise, Jaipur -vs - Rajasthan Spinning & Weaving Mills Limited, reported in 2010 (255) E.L.T. 481 (S.C.). The petitioner further relies upon a subsequent judgment of the Tribunal, rendered in the case of Commissioner of Customs & Central Excise, Visakhapatnam -II -vs - A.P.P. Mills Limited, reported in 2013 (291) E.L.T. 585 (Tri. -Bang.), wherein it is specifically held that the Larger Bench decision of the Tribunal, in the case of Vandana Global Limited (supra), is no longer a good law. The petitioner, thus, says that since the foundation of the impugned order itself is based on the Larger Bench judgment of the Tribunal, which is no longer a good law, the impugned order is not sustainable.
(3.) THE learned advocate, appearing for the respondents, vehemently refutes the aforesaid contention and says that the judgment, rendered in the case of Vandana Global Limited (supra), was, in fact, applied by the Tribunal to the benefit of the petitioner. It is further submitted that the petitioner could not produce any material before the assessing officer or the Tribunal in support of its contention that the materials, for which the CENVAT Credit was availed of, were used as inputs to the final product. Attention of the Court is drawn by the petitioner to the certificate, issued by the chartered accountant, in support of the contention that those materials were used as capital goods and, therefore, the Tribunal has proceeded on a wrong premise and, therefore, the order is unsustainable.;