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2023 (9) TMI 60 - AT - Central ExciseCENVAT Credit - allegation of the department is that the appellants have not availed CENVAT Credit available to them in order to manipulate the cash refund in terms of Notification no. 56/2002 - HELD THAT:- Hon’ble Supreme Court in the case of COMMISSIONER OF C. EX., HYDERABAD VERSUS NOVAPAN INDUSTRIES LTD. [2007 (1) TMI 5 - SUPREME COURT] held that as against this the ld. Commissioner (Appeals) has recorded that this element when inbuilt in the price and claimed as a deduction to be in the nature of an abatement and as therefore concluded that such a claim for abatement was not considered by the Hon’ble Supreme Court in the GOVERNMENT OF INDIA VERSUS MADRAS RUBBER FACTORY LTD. [1995 (5) TMI 28 - SUPREME COURT] case. Revenue seeks to include the value of cardboard boxes supplied free of cost by the customer to be included in the assessable value of the tin containers. We find that the issue is no longer res integra. Hon'ble Apex Court in the case of JAUSS POLYMERS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT [2003 (9) TMI 87 - SUPREME COURT] held that since the drums were supplied by the buyer and were not supplied by the manufacturer, their cost cannot be included. The appellant has not violated any provisions of either CENVAT Credit Rules, 2004 or the conditions of Notification No. 56/2002. The appellants did not avail cash refund in some months and in some months, they availed refund less than the upper limit of 39%. This goes to prove the bona fides of the appellant - the appellants are not required to include the cost of packing material supplied free by the appellant in the assessable value of the tin containers manufactured and cleared by them. Therefore, the demands raised and confirmed thereof; penalties imposed are not sustainable. Appeal allowed.
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