TMI Blog2007 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri C.S. Lodha, Advocate, for the Appellant. Shri J.P. Gregory, JCDR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - M/s. Pepsico India Holdings India Pvt. Ltd. (PIHPL, Pepsi), manufacture and clear dutiable aerated waters and a fruit pulp based drink 'Slice'. They use common inputs plastic crates and Furnace Oil in the manufacture of these products. During 1-11-2003 to 30-9-2005, PIHPL had cleared both categories of final products packed in plastic crates. Commissioner of Central Excise, Pondicherry had demanded an amount of Rs. 1,25,00,000/- being 8% of the sale price of Slice cleared during the period 1-10-2003 to 30-9-2004 vide his Order in Original No. 14/2005 dated 18-10-2005 in terms of Rule 6(3)(b) and Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of final products, Pepsi had not maintained separate accounts as required under Rule 6(3)(b) of CCR. Though Pepsi had reversed the entire credit of duty it had availed in respect of FO, we upheld the demand on the ground that Pepsi had not fulfilled the condition of maintaining separate accounts. Assessee filed an ROM application pointing out certain errors apparent in our Final Order No. 464/2007 dated 30-4-07. We found that the duty demand upheld had been erroneously computed in the order. We had not restricted the demand for the period from 16-5-05 (when the Rule 6 of CCR was amended including fuel as an input requiring maintenance of separate accounts when it is a common input) to 31-8-05 (when Pepsi ceased availing credit on FO). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had also heard the arguments of the ld. JCDR for the revenue. 3. Today, when the appeal No. E/771/2006 was called; the learned JCDR submitted that the recall of the Final Order amounted to review of our own order. Citing case law it was argued that the recall of the order was not correct. As the Misc. Order had been passed after hearing the ld. JCDR, we overruled the objection of the JCDR. Sustaining the objection would have amounted to reviewing our Misc. Order which was not permissible as argued by the JCDR himself. 4. The learned Counsel for the appellants submitted that at the initial hearing he had argued that in view of the judgment of the Apex Court in Chandrapur Magnets case and the judgment of the Allahabad High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit. As regards the plastic crates, we had already found that Pepsi had not used fresh crates in packing exempt Slice bottles. 5. The ld. JCDR submitted that the Final Order had been correctly passed considering the various case laws cited and that the appellant was canvassing a new case not argued earlier. The Bench had correctly found that later reversal of credit availed was not enough to obviate the requirement to pay 8%/10% of the sale price of exempted final products as mandated by Rule 6(3) (b) of CCR. 6. We have carefully considered the case records and the rival submissions. In the instant case, the demand had been made for the reason that Pepsi had availed credit of duty paid on FO used in dutiable and exempted final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agnet Wires and Hello Mineral Water (P) Ltd. (supra) is also to the same effect. 6.2 In CCE, Mumbai-IV v. Philips India Ltd [2006 (200) E.L.T. 106 (Tri.-Mumbai)], following the ratio of apex Court's judgment in Chandrapur Magnet Wires (P) Ltd. case (supra) the Tribunal decided that where it was not possible to segregate the inputs used in exempted and dutiable final products, reversal of ascertained credit on inputs used in exempted products before their clearance amounted to non-availment of credit. In Ballarpur Industries Ltd v. CCE [2006 (201) E.L.T. 146 (Tri.-Mumbai)} facts were that assessee did not maintain separate accounts in respect of one of the several common inputs and reversed proportionate credit relatabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
