Raymond Limited vs Commissioner of C. Ex.

S.A. Bobde, J.—Heard Shri Shah, learned Counsel for the Appellant and Shri Mishra, learned Counsel for the Respondent. Admit. Taken up for final hearing by consent.

The Appellant has challenged the order of the Customs Excise and Service Tax Appellate Tribunal in regard to the goods found at the factory of the Appellant. According to the revenue, the Appellant is not entitled to any credit on these goods because the name of the manufacturer on the goods is different from the name which is shown on the commercial invoice/packing list of the Bill of Entry. The Tribunal has upheld the contention of the revenue. Hence, this appeal.

Shri Shah, learned Counsel for the Appellant submitted that the entitlement to credit arises upon a legal import of the goods and the Assessee is entitled to credit if the goods have been legally imported and countervailing duty has been paid at the time of entry. He further submits that there is no discrepancy whatsoever between the goods that were found at the factory of the Appellant and the goods referred to in the Bill of Entry and on which countervailing duty has been paid. Admittedly, there is not even a whisper that there was any swapping of goods from the point of entry to the factory. In these circumstances, the learned Counsel submits that the credit could not have been denied to the Appellant on the ground that there is discrepancy between the name of the manufacturer on the goods found at the factory and the name of the manufacturer on the documents. We find that the aforesaid contention deserves consideration.

It must be noted that in the present case there is no charge by the department that there is any discrepancy in the value of the goods that is to say, value stated by the manufacturer in the documents and the value found in the bill of entry on which the countervailing duty is paid. In this view, it is obvious that the entitlement or otherwise of the Appellant to credit may not be adversely affected by the fact that a different name of the manufacturer appears in the document. More importantly it appears that this contention made before us was also raised before the Tribunal and it is apparent from paras 3 & 4 of the impugned order dated 29-1-2008. However, while answering the question, the Tribunal has completely overlooked this submission and has decided the matter only on the basis of examination report which does not notice any change in the marks and name of the manufacturer. This in our view has led to an error of law apparent on the face of record inasmuch as a relevant consideration has been left out.

In the other appeal i.e. Central Excise Appeal No. 32 of 2008, the Appellant has raised the question of refund. We find that the Appellant has been denied refund on same reason by which credit has been held to be inadmissible. The question of refund is obviously dependent upon the answer to question, above. We, therefore, consider it appropriate to set aside the impugned order. We, however, make it clear that we have not held the order denying refund as illegal but we are constrained to set aside it only because it is dependent on the first question viz., entitlement of credit so that the two issues remain consolidated.

We, therefore, set aside the impugned order of the Tribunal and remand the matter back to the Tribunal for consideration in accordance with law. Needless to say that the Tribunal shall decide the matters afresh and all contentions of the parties are left open.

In the result, both the Central Excise Appeals are disposed of accordingly.