ATCOM TECHNOLOGIES LTD. AND ORS. Vs. COMMISSIONER, CENTRAL EXCISE & SERVICE TAX AND ORS.
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Atcom Technologies Ltd. And Ors.
Commissioner, Central Excise And Service Tax And Ors.
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P.K. Das, Member (J) -
(1.)THESE appeals are arising out of a common order and therefore, both are taken up together for disposal.
(2.)THE relevant facts of the case, in brief, are that the assessee is engaged in the manufacture of Polycarbonate Bottles, Plants & Machineries etc. They received the imported capital goods mainly Insert, Lip, Cavities, Injection Core in the month of May 1997 and May 1998 and used in the manufacture of finished product Polycarbonate, which was exempted from duty by Notification No. 4/1997 -CE, dt. 10.03.1997. The said notification was rescinded and replaced by Notification No. 5/1998 -CE, dt. 02.06.1998. The assessee discontinued the benefit of exemption notification and started paying duty. The assessee availed the CENVAT Credit on the capital goods, which were received and utilized during the month of May 1997 and May 1998. The credit was taken on 17.03.1999.
A show cause notice dt. 27.02.2004 was issued by the Additional Commissioner of Central Excise & Customs, Daman, proposing to deny the MODVAT Credit on capital goods amounting to Rs. 38,57,045.00 wrongly availed and utilized by them and recovered under Rule 57U(2) and of Central Excise Rules 1944 (present Rule 12 of Central Credit Rules 2002) alongwith interest and penalty. It has also proposed to impose penalty on Shri Nalin Desai, Chief Manager of the assessee under erstwhile Rule 209A of Central Excise Rules 1944. The Adjudicating authority disallowed the CENVAT Credit of Rs. 38,57,045.00 alongwith interest and imposed penalty of Rs. 38.57 lakhs under Rule 57U(6) of Central Excise Rules 1944 (present Rule 25 of Central Credit Rules 2002). A penalty of Rs. 5 lakhs was also imposed on Shri Nalin Desai, Chief Manager of the assessee company. By the impugned order, the Commissioner (Appeals) dismissed the appeal filed by the assessee and allowed the appeal filed by Shri Nalin Desai. Hence, both the assessee and the Revenue filed these appeals before the Tribunal.
(3.)LEARNED Advocate appearing on behalf of the assessee and its Chief Manager submits that the Commissioner (Appeals) passed the order, following the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd. Vs. CCE Thane, 2007 (216) ELT 133 (Tri -LB). He submits that the said decision would not be applicable in the present case for the reason that in this case, the assessee availed the conditional benefit of exemption Notification No. 4/1997 -CE. The said notification provides the condition that the exemption will be eligible if no CENVAT Credit has been availed by the manufacturer. It is submitted that the after the Larger Bench decision, Hon'ble High Court and the Tribunal held that the said decision would not be applicable in the case of availment of CENVAT Credit on the basis of conditional notification. He relied upon the following decisions: -
a) CCE Chandigarh Vs. S.T. Cottex Exports Pvt. Ltd. : 2011 (268) ELT 318 (P & H)
b) Oswal Woolen Mills Ltd. Vs. CCE Ludhiana : 2012 (284) ELT 240 (Tri -Del)
c) CCE Madurai Vs. Eastman Spinning Mills Pvt. Ltd. : 2011 (271) ELT 256 (Tri -Che.)
d) CCE Bangalore Vs. Kailash Auto Builders Ltd. : 2012 (280) ELT 49 (Kar.)
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