M/s J.V. Industries Versus CCE & GST, Delhi-2/Delhi East
Central Excise
2018 (9) TMI 980 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 13-9-2018
Ex. Misc. 50517/2018 in Ex. Appeal No. 51143 of 2017 – Interim Order No. 69/2018
Central Excise
Mr. Anil Choudhary, Member (Judicial) and Mr. Bijay Kumar, Member (Technical)
Sh. B. L. Narasimhan, Advocate for the appellant
Sh. S. K. Bansal, AR for the Respondent
ORDER
This miscellaneous application has been filed by the applicant/ assessee for compliance of Final Order No. 57983/2017 dated 15.11.2017 passed by the Tribunal.
2. The brief facts of the case are that the Tribunal vide its common Final Order No. A/52510 – 52522/2015 dated 06.08.2015 (disposing appeals alongwith appeal of JSL Stainless Limited arising from separate show cause notice, but common investigation) has set aside the order-in-original No. 15/2009 dated 20.11.2009 and remanded the matter to the Original Authority for fresh adjudication aft
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ore the Commissioner (Appeals) for the refund claim on the ground that the amount of Rs. 40 crores was deposited vide a challan dated 31.03.2008 and the challan was marked – “without prejudice and pending investigation relating to cenvat credit of Rs. 4.37 crores against nickel carried by Anti Evasion Branch of Central Excise, C.R. Building, New Delhi”, as the re-adjudication proceedings are pending the refund is pre-mature.
5. Being aggrieved, the appellant approached this Tribunal in Ex. Appeal No. 51143/2017 and with a Final Order No. 57983/2017 dated 15.11.2017 this Tribunal taking note of earlier Final order allowing the appeal by way of remand and further taking notice of the decision of the Hon'ble Gujarat High Court in Anita Exports – A partnership firm & 1 vs. Union of India & 2 – 2015-TIOL-2293-HC-AHM-CUS wherein it has been held that the pre-deposit has been refunded to the assessee in case the appeal is allowed.
6. This Tribunal considering the submissions of the parties
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
CESTAT Final Order No. 57983/2017-Ex (DB) dated 15.11.2017. The appellants were further advised to approach Commissioner, the adjudicating Authority in the matter and subject refund application was stated to be returned back. The applicant / appellant further approached the office of the Asst. Commissioner by their letter dated 11.05.2018 received in the office of the respondent on 14.05.2018, wherein the applicant categorically stated that they did not hear from the respondent- department for adjudication of the matter even after about 5 months of passing of the Hon'ble CESTAT's order in pursuance of the Final Order dated 15.11.2017. Further, they stated that they have filed an application dated 25.04.2018 for granting of the refund along with release of the bond and bank guarantee, and the application dated 26.04.2018 was returned back to them stating that the matter is still pending with the Commissioner, Central Excise, Rohtak, for denovo adjudication and they were required to app
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
IV(Hqrs. Prev.) Int./24/D-II/07
17.06.2008
1359478/-
3
JV Industries
IV(Hqrs. Prev.) Int./24/D-II/07
30.12.2008
43755733/-
ii. On commencement of GST from 01.07.2017, the jurisdiction of all the CGST Commissionerates was re-allocated. Since M/s J. V. Industries were registered with Mandoli Division under GST Delhi East Commissionerate and M/s JSL were registered with Hissar Division under GST Rohtak Commissionerate, this office sought guidance from the Chief Commissioner's office as to whether the directions contained in the Order No. 04/2017 dated 16.06.2017 may be complied with.
iii. Vide letter C. No. IV(16)660/JV Indus/ Samiksha/GST-East/2017 dated 21.02.2018, the Review Branch informed that the CESTAT Final Order No. A/57983/2017-EX(DB) dated 15.11.2017 i.r.o. M/s J. V. Industries Pvt. Ltd. had been accepted by the competent authority. Vide the FO dated 15.11.2017 referred above, the CESTAT directed the adjudicating authority to decide /pass the original order a
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
adjudication.
vi. The adjudicating authority once again granted personal hearing to the party on 18.07.2018 which was attended by Sh. Vijendra Kumar, authorised signatory appointed by M/s J.V. Industries Pvt. Ltd., who despite being affirmed by this office regarding the appointment of Commissioner, GST Delhi East Commissionerate as the common adjudicating authority, repeatedly requested to apprise them of the 'correct' adjudicating authority, which in terms of Final Order dated 06.08.2015, shall be adjudicating the captioned SCNS so as to eliminate the possibility of the matter being taken up simultaneously by the Rohtak Commissionerate for adjudication. Further, they also provided a 'tentative' list of the persons for the purpose of cross examination.
vii. This office, vide letter C. No. CE-15/Adj/D-II/469/JV/08 dated 06.08.2018, had requested the party to submit a final list of the witnesses along with the detailed reason for cross-examination of each of the witnesses clearly, to
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
nce of the final order of this Tribunal and consequent refund of Rs. 4.40 crores and also release of the bond and bank guarantee made during investigation in terms of the earlier final order dated 15.11.2017, in response thereto, by his letter dated 26.04.2018, the Asst. Commissioner informed the appellant that their refund claim cannot be entertained by the respondent at the moment, as their matter is still pending with the Commissioner for denovo adjudication in terms of the earlier final order of this Tribunal dated 06.08.2015, further read with CESTAT Final Order No. 57983/2017-Ex (DB) dated 15.11.2017. The appellants were further advised to approach Commissioner, the adjudicating Authority, in the matter and the subject refund application was stated to be returned back. The applicant / appellant further approached the office of the Asst. Commissioner by their letter dated 11.05.2018 received in the office of the respondent on 14.05.2018, wherein the applicant categorically stated
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
supra, it is evident that non-compliance by the Commissioner was not deliberate but due to reorganisation of field formation, on account of GST implementation w.e.f. 01.07.2017.
14. Having considered the rival contentions and in view of the fact that the Board have now appointed a common Adjudicating Authority vide Order No. 2/2018-CE dated 22.06.2018, we find it just and proper to give the following directions:
(i) The appellant M/s J. V. Industries Private Limited and the other connected party M/s JSL Stainless Limited are directed to file their submissions/ representation before the respondent adjudicating authority on or before 15.10.2018. Thereafter, the ld. Respondent Commissioner shall fix the date of hearing. The hearing shall be held on day-to-day basis and the parties/ assessee will not ask for adjournment and co-operate in the adjudication process. The ld. Commissioner is expected to pass the re-adjudication order within a period of three months i.e. on or before 25.
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =