2004 (96) ECC 486 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

West Regional Bench -- Mumbai

Smt. Archana Wadhwa, Member (J) and Shri K.D. Mankar, Member (T)

R.K. Patel & Company Tobacco Manufacturers

Versus

Commissioner of Central Excise, Nasik

Appeal No. E/1933/03/Mum

[Arising out of Order-in-Appeal No. CEX-XI/JMJ/202/916/NSK/APL/2003 dated 18.6.2003, passed by the Commissioner of Central Excise & Customs (Appeals), Nasik]

Order No. A/352/WZB/2004-C-II, dt. 26.5.2004, Certified on 11.6.2004

Modvat Credit

Claim -- Duty demanded on unbranded chewing tobacco -- Confirmed by the Tribunal but though the Additional Commissioner has discussed about the Notification No. 24/94-CE, which extends the benefit of the modvat credit in respect of unbranded chewing tobacco used in the manufacture of branded chewing tobacco, he has nowhere examined the said claim of the appellants, the matter is remanded to the Additional Commissioner for examining the above claim of the appellants.

Appeal disposed of accordingly

PRESENT :

Shri S.P. Mathew, Advocate for the appellant.

Shri R.B. Pardeshi, JDR for the respondent.

Per : Smt. Archana Wadhwa

Vide the impugned Order-in-Appeal, duty of Rs. 3,81,200 has been confirmed against the appellants on the unbranded chewing tobacco. Shri S.P. Mathew, Ld. Advocate appearing for the appellants does not dispute the above duty liability and admits that the same was required to be paid by them. He also submits that the entire duty has since been paid by the appellants in terms of the stay order passed by the Tribunal. However, he submits that the appellant is entitled to said duty to be taken as modvat credit by him. As such, by drawing our attention to the Tribunal Order in the case of R.K. Patel Tobacco Trading Co. being Order No. CI/2685, 2686/WZB/2003 vide which the modvat credit facility of the duty paid on the unbranded chewing tobacco was extended, it was pleaded to grant similar benefit in this case also.

2. Shri R.B. Pardeshi, Ld. JDR appearing for the respondents submits that, the only dispute before the Commissioner was the duty liability of the appellant and he had not examined the appellant's  claim for the modvat credit. He requests that the matter be remanded to the Additional Commissioner for examining the claim.

3. After careful consideration, we find that though the Additional Commissioner has discussed about the Notification No. 24/94-CE, which extends the benefit of the modvat credit in respect of unbranded chewing tobacco used in the manufacture of branded chewing tobacco, he has nowhere examined the said claim of the appellants. As such, while confirming the demand of duty against the appellants, we remand the matter to the Additional Commissioner for examining the above claim of the appellants. The appeal is thus disposed of in above terms.

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