Partly allowed

Hindustan Petroleum Corporation Ltd. v. the Commissioner of Cgst and Central Excise Navi Mumbai Commissionerate

Bombay HC15 Oct 2018CEXA/68/2018

Case brief

AI extract

What is this about?

The Bombay High Court allowed the appeal, setting aside the Tribunal's order which disregarded a Chartered Accountant's certificate regarding unutilised Cenvat credit. The court restored the matter to the Tribunal for fresh consideration on the facts and to decide the issue of interest liability based on those findings.

What did the court decide?

Impugned order of the Tribunal dated September 28, 2017 set aside; appeal restored to the Tribunal for fresh consideration on question (a) and (b).

Hindustan Petroleum Corporation Ltd. Vs the Commissioner of… — Money Laundering | Bombay HC (2018)

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1 22a) cexa68-18.doc

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SAS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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CENTRAL EXCISE APPEAL NO.68 OF 2018

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Hindutan Petroleum Corpn. Ltd. ..Appellant V/s. The Commissioner of CGST & Central Excise, Navi Mumbai Commissionerate ..Respondent.

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..Respondent.

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Ms.Mansi Patil for the appellant.

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Mr.Vijay Kantharia with Mr.J.B.Mishra for the respondent.

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CORAM: M.S.SANKLECHA AND RIYAZ I. CHAGLA, JJ. DATE : OCTOBER 15, 2018

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P.C.:-

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This appeal under section 35G of the Central Excise Act, 1944 challenges the order dated September 28, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Mumbai (the Customs, Excise and Service Tax Appellate Tribunal (for short “the Tribunal”)).

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Ms.Manasi Patil, the learned counsel appearing for the appellant urges the following substantial questions of law for our consideration is :-

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2 22a) cexa68-18.doc

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“ a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the appellant did not have sufficient unutilised credit balance during each of the months for which the demand is raised in the face of the Chartered Accountant's certificate on record ?

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b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that interest is payable to the extent of credit taken even when the unutilised credit available during the entire period of demand till reversed was in excess of credit taken ? ”

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This appeal is admitted on the above two substantial questions of law.

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At the request of the parties, the appeal is taken up for final disposal as the dispute is within a narrow compass.

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Regarding question (a)

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The impugned order dated September 29, 2017 of the

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Tribunal confirms the demand of interest for the period commencing with the Cenvat Credit taken by the appellant till it is voluntarily reversed. This was after rejecting the evidence in the form of Chartered Accountant's certificate which shows month-

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3 22a) cexa68-18.doc

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wise balance of credit available. This would establish that the appellant had total credit available in excess of that utilised during the months for which demand has been made. Thus, it follows that the wrongly taken credit was not utilised by the appellant so as to charge any interest.

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The impugned order of the Tribunal has disregarded the Chartered Accountant's certificate and without giving any reasons came to the conclusion that the appellant did not have excess unutilised credit available during the month for which demand was issued. Thus, this makes the order bad as being an order without reasons. In the above view, the impugned order dated September 28, 2017 is set aside and the appeal is restored to the file of the Tribunal.

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Regarding question ( b)

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This question would arise after the Tribunal renders a finding of fact on question No. (a) after considering the evidence already on record in respect of the unutilised Cenvat credit during each of the months for which demand has been raised. Thus, the answer to the question would only arise, if factually the Tribunal

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4 22a) cexa68-18.doc

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on remand comes to the view that excess unutilised cenvat credit is available.

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In the above view, the impugned order dated September 28, 2017 is quashed and set aside. The appeal is restored to the Tribunal for fresh consideration after considering the evidence already on record, including Chartered Accountant's certificate.

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The appeal is disposed of in terms of above.

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( RIYAZ I. CHAGLA, J. ) (M.S.SANKLECHA, J.)

Hindustan Petroleum Corporation Ltd. v. the Commissioner of Cgst and Central Excise Navi Mumbai Commissionerate

Case brief

What is this about?

What did the court decide?

Hindustan Petroleum Corporation Ltd. v. the Commissioner of Cgst and Central Excise Navi Mumbai Commissionerate

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Coram

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