TMI Blog2023 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute. In terms of rule 3 of CENVAT Credit Rules, 2004, with duty liability having been discharged and the procured goods conforming to definition of inputs in rule 2(k) of CENVAT Credit Rules, 2004, there is no ground for disallowance of the said credit. Furthermore, the goods cannot be said to be exempt inasmuch as the notification relied upon in the appeal of Revenue is a non-tariff notification which does not have the effect of section 5A of Central Excise Act, 1944 and is merely procedural and conditional - It is also settled law that it is not open to the central excise authorities having jurisdiction over the buyer to determine leviability to duty of a seller in another jurisdiction. The duty having been discharged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation scheme of Foreign Trade Policy (FTP) enabling import of the primary ingredient, viz., copper, without payment of duty. The respondent, instead of sourcing copper from abroad had, in terms of the scheme in the Foreign Trade Policy (FTP), obtained the same from M/s Hindalco Industries Ltd and M/s Sterlite Industries Ltd between October 2004 and March 2009 on payment of duty of ₹ 5,26,47,414/- and upon invalidation of the advance authorization to such extent. The availment of these duties as credit was objected to by central excise authorities who proceeded to initiate action for recovery thereof under rule 14 of CENVAT Credit Rules, 2004 on the ground that suppliers of copper were entitled to clear those without payment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court of Bombay. 5. It is contended by the Learned Counsel for the respondent that the dispute in re Oleofine Organics India Pvt Ltd had found resolution before the Hon ble High Court of Bombay in Commissioner of Central Excise Customs, Thane-I v. Oleofine Organics India Pvt Ltd by its order dated 13th October 2024 disposing off Central Excise Appeal no. 297 of 2013 thus: 3. Upon careful perusal of the order and particularly, para 5, we are of the opinion that the anxiety of the revenue is that the appellant should avail of the benefit of this notification only on satisfaction of the conditions therein. Since the supplier who has supplied the goods and which are stated to excisable, to the assessee before us, he has recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot require the appellants to necessarily clear the goods duty free by following the procedure under Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001. We also note that overall there is no loss to the Revenue as the credit is being taken of the duty paid. If the appellants could have followed the Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001, no duty would have been paid by the suppliers and appellants would also have not got any credit. We also note that in the impugned order, Tribunal judgment in the case of M/s. Reliance Industries Ltd. reported in 2009 (244) ELT 254 (Tri.-Ahd.) have been cited with lot of force. We have gone through the said judgment and we find that the issue involved in the said judgment was different and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine leviability to duty of a seller in another jurisdiction. On this very issue, in relation to the very same notification, the Tribunal in Shree Shyam Filaments v. Commissioner of Central Excise Service Tax, Jaipur I [2014 (310) ELT 801 (Tri.-Del.)] had held that 7. The appellant had been issued Advance Authorization and since they did not use those Advance Authorization for duty free import of inputs, they got the same invalidated and obtained invalidation letters in favour of certain domestic suppliers for duty free supply of the inputs. However, domestic suppliers instead of supplying the inputs duty free in terms of Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001 supplied those inputs on payment of duty. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. 9. The duty having been discharged by manufacturers of copper who had supplied inputs to the respondent, there is no ground for denial of eligibility for CENVAT credit. Furthermore, the primary contention in the appeal of Revenue is that on identical matter was pending resolution, in their appeal, before the Hon ble High Court of Bombay in re Oleofine Organics India Pvt Ltd. With the disposal of that appeal, discarding the challenge mounted by Revenue against the order of the Tribunal permitting availment of credit, the grounds of appeal itself ceases to exist. 10. In view of the above facts and circumstances, the appeal lacks merit and is, accordingly, dismissed. (Order pronounced in the open court on 06/11/2023) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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