Denial of CENVAT Credit - TMT bars were sold by the appellant, which are used in Mega Power Project against the goods to be supplied against the international competitive bidding - benefit of N/N. 6/2006-CE dated 01.03.2006 - HELD THAT:- In the case of Industrial Perforation (India) Pvt. Ltd. [2019 (12) TMI 111 - CESTAT KOLKATA], this Tribunal has observed the only condition is that goods are cleared under International Competitive Bidding for use in the specified Mega Power Projects which are exempted from customs duty. The supply of subject goods in the instant case for Mega Power Project under International Competitive Bidding is on record and not in dispute. Moreover, since the case of the appellant has already been settled by the Co-ordinate Bench of the Tribunal as noted above, the appellant is legally entitled to exemption from payment of Central Excise duty and thus the duty demand is not sustainable. It is not in dispute that the subject goods are used for Mega Power Project through International Competitive Bidding. Therefore, by relying on the above cited decisions, the appellant is entitled for the exemption as claimed. There are no merit in the impugned order and the same is set aside - appeal allowed.

Refund of unutilized balance in CENVAT credit - Conformity of appellate determination - competence to decide on the refund entitlement - HELD THAT:- Finality of the order of the Tribunal is beyond question and it was incumbent upon central excise formations to implement the order without let or hindrance. The original authority took cognizance and proceeded to render the appropriate conclusion. The jurisdictional Commissioner of Central Excise took the path of disregard duly acclaimed in full measure by the first appellate authority. By transgressing the direction of the Tribunal and seeking recourse from Commissioner of Central Excise (Appeals), the reviewing authority is in the very same jeopardy that caused admonishment supra the Hon’ble Supreme Court. This cannot be tolerated by any stretch. The first appellate authority is in no less of jeopardy for the original authority has clearly attested to the urgency in implementing the order without awaiting the outcome of review. Appeal allowed.

Grant of interest on delayed payment of refund under Section 11BB of Central Excise Act - HELD THAT:- The appellant is entitled to interest on the delayed refund in view of the judgement of the Hon’ble Apex Court in the case of Ranbaxy Laboratories Ltd. vs. UOI cited [2011 (10) TMI 16 - SUPREME COURT] wherein the Hon’ble Apex Court has held that liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. The appellant has filed the refund claim on 28.10.2010 which was finally sanctioned on 31.08.2020 but no interest was granted - Further, as per Section 11BB of the Act, the interest is payable after the expiry of 3 months from the date of receipt of application. Therefore, in this case, the appellant is entitled to interest on delayed payment from 27.01.2011 to till date of credit to the account of the appellant at the rate of 6% as per the statute. The original authority is directed to compute the amount of interest and pay the same within the period of 2 months from the date of receipt of this order - Appeal allowed.

Wrong availment of input tax credit of amount paid on fully exempted goods as per Sl. No. 90 of Notification No. 04/2006-C.E. dated 01.03.2006, as amended - main contention of the Department is that payment of duty at concessional rate without availing exemption for their first clearances of 3,500 M.T. is violative of the provisions of Explanation to sub-section (1A) of Section 5A of the Central Excise Act, 1944. Whether the principal manufacturer is eligible to avail exemption as per Notification No. 04/2006-C.E. dated 01.03.2006 under Sl. No. 91 and clear the goods on concessional payment of duty? - whether it is mandatory to avail ‘nil’ rate of duty as provided under Sl. No. 90 and consequently, whether the appellant herein is eligible for availment of CENVAT Credit of the duty paid by the principal manufacturer? HELD THAT:- In the case of M/S. KOVAI MARUTHI PAPER AND BOARDS, M/S. SARASWATHI UDYOG INDIA LTD, SHRI RAM CARTONS, M/S. SRIVARI PACKAGING INDUSTRIES VERSUS CCE, SALEM AND CCE, SALEM VERSUS M/S. SARASWATHI UDYOG INDIA LTD., M/S. KOVAI MARUTHI PAPER AND BOARDS [2018 (5) TMI 474 - CESTAT CHENNAI], the Chennai Bench of the Tribunal had examined whether the principal manufacturers should compulsorily avail the exemption under Sl. No. 90 of the said Notification which prescribes ‘nil’ rate of duty. The Tribunal had followed the decision in the case of BALKRISHNA PAPER MILLS LTD, LAXMI BOARD AND PAPER MILLS LTD, COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE –I AND LAXMI BOARD AND PAPER MILLS LTD [2015 (11) TMI 210 - CESTAT MUMBAI] wherein it was held that an assessee cannot be forced to avail the ‘nil’ rate of duty provided under Sl. No. 90 of the Notification. The Tribunal in the case of M/S. SRIPATHI PAPER & BOARDS VERSUS CCE & ST, TIRUNELVELI [2018 (9) TMI 891 - CESTAT CHENNAI] had occasion to analyse a similar issue, wherein it was decided that The first condition is that the exemption is available for the clearance of first 3500 MTs and the second condition is that the exemption is not applicable to a manufacturer who avails exemption under Notification No. 8/2003-CE dated 01.03.2003. The ‘nil’ rate of tax is therefore available subject to the satisfaction of both the above conditions and appeal allowed. The impugned order set aside - appeal allowed.

Maintainability of appeal - appeal dismissed for non-compliance of the mandatory requirement of Section 35-F of the Act with respect to pre-deposit to maintain the statutory appeal - HELD THAT:- While there is no dispute that the right of appeal claimed by the appellant before the Tribunal was conditional inasmuch as such appeal may be maintained only upon making pre-deposit prescribed by the statute, at present, learned counsel for the appellant prays for some time to make the pre-deposit to maintain the appeal before the Tribunal. Undisputedly, the appellant is a statutory board constituted by the Government of U.P. In such circumstance, upon query made, Sri Amit Mahajan, learned counsel for the revenue fairly states, if the present appellant were to make good the deposit within a period of one month from today, the revenue would have no objection to the impugned order being set aside so as to allow the appellant to press its appeal on merits. In view of such statement made, no useful purpose would be served in seeking to decide the legal issues being raised - Appeal disposed off.

Clandestine Removal - shortage of stock - Demand of differential value of the stock - various differences in the physical stock of finished/semi-finished goods shown in their statement when compared with the adjusted RG-1 opening balance of stock of finished/semi-finished goods for the years 2001-02, 2002-2003 and 2003-2004 - validity of SCN - parameters relied upon by the authorities in the show-cause notice and the parameters relied upon by the learned Commissioner are at variance - HELD THAT:- The show-cause notices though demanded duty beyond the normal period fail to invoke proviso to Section 11A but the learned Commissioner in his impugned order invoked proviso to Section 11A and imposed penalty under Section 11AC which is beyond the scope of show-cause notices. In this regard, the Hon’ble Supreme Court in case of COMMR. OF CENTRAL EXCISE & CUSTOMS, SURAT VERSUS M/S SUN PHARMACEUTICALS INDS. LTD. & ORS. [2015 (12) TMI 670 - SUPREME COURT] has held that the genuineness of the price at which the physician samples were sold by the assessee to the distributors was not even doubted. It is only on the ground that the goods were not actually sold by the distributors to the physicians, which was the ground on which it was contended that the case was not covered under Section 4(1)(a). The Commissioner in present case has held that In fact, the genuineness of the price at which the physician samples were sold by the assessee to the distributors was not even doubted. It is only on the ground that the goods were not actually sold by the distributors to the physicians, which was the ground on which it was contended that the case was not covered under Section 4(1)(a) - further they held that In the instant case, discrepancies between the accounts (RG1) and the audited accounts have been noticed in respect of closing stocks. Since it is inherent from the very nature of estimation of stocks in steel factories that there will be variations between what is reflected in the RG1 and what is actually found, no malafide can be attributed in the discrepancies or inaccuracies found between the two figures which are based on estimates. In the absence of any mala fide, confiscation of goods found in excess stock and imposition of penalty is not warranted. In spite of these observations, he proceeds to impose invoke proviso to section 11A and impose penalty under Section 11AC which is legally not sustainable. The appellant’s in their own case reported in STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF C. EX., MYSORE [2005 (10) TMI 181 - CESTAT, BANGALORE], the Tribunal has held that the discrepancy between the RG1 stock and the physical stock are based on the estimated production and not on actual weighment. Comparison between two estimations is inherently inaccurate. Because of these shortages, if any, is inflated due to errors in taking opening balance and physical stock. Considering the practical difficulties in estimating the actual stock and in view of the submissions made by the appellant, the Tribunal had set aside the impugned order. In the case of ROURKELA STEEL PLANT [SAIL] VERSUS COMMISSIONER OF C. EX., BHUBANESWAR [2000 (7) TMI 726 - CEGAT, KOLKATA], the Tribunal had held that even if there are differences in the stock taking and the shortages are found, the duty can be demanded only when they are removed from the factory. The findings on the clandestine manufacture and removal cannot sustain against the appellants as Revenue has not provide any proof of clandestine removal. Accordingly, demand was set aside. In the present appeal also even if the shortages are to be accepted, there is no iota of evidence either in the show-cause notices or in the impugned order to prove that these goods were clandestinely removed. The demands are set aside and accordingly, penalty is also set aside - Appeal allowed.

Distribution of CENVAT Credit - input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units - rule 7(d) of the CENVAT Rules - HELD THAT:- A Division Bench of the Tribunal in M/S. KRISHNA FOOD PRODUCTS, M/S. MARIAMMA R. IYER, M/S. PARLE BISCUITS PVT LTD. VERSUS THE ADDITIONAL COMMISSIONER OF CGST & C. EX [2021 (5) TMI 906 - CESTAT NEW DELHI] expressed reservations about the proposition of law laid down by the Division Bench in SUNBELL ALLOYS CO OF INDIA LTD & MACHSONS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2014 (2) TMI 297 - CESTAT MUMBAI] and also noticed that a Division Bench of the Tribunal in COLGATE PALMOLIVE (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2011 (2) TMI 57 - CESTAT MUMBAI] had taken a contrary view. The Division Bench, therefore, referred the questions for consideration by a Larger Bench of the Tribunal. The Larger Bench of the Tribunal in M/S. KRISHNA FOOD PRODUCTS held that Parle was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle and its contract manufacturing units, including the appellant (Krishna Food), under rule 7(d) of the CENVAT Rules. In view of the answer given by the Larger Bench of the Tribunal, the order dated 05.07.2018 passed by the Commissioner (Appeals) cannot be sustained and is set aside - appeal allowed.

CENVAT Credit - Distribution of CENVAT Credit - input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including the appellant - rule 7(d) of the CENVAT Rules - HELD THT:- A Division Bench of the Tribunal while hearing Excise Appeal No. 52692 of 2019, Excise Appeal No. 52693 of 2019 and Excise Appeal No. 52694 of 2019 expressed reservations about the proposition of law laid down by the Division Bench in SUNBELL ALLOYS CO OF INDIA LTD & MACHSONS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2014 (2) TMI 297 - CESTAT MUMBAI] and also noticed that a Division Bench of the Tribunal in COLGATE PALMOLIVE (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2011 (2) TMI 57 - CESTAT MUMBAI] had taken a contrary view. The Larger Bench of the Tribunal in M/S. KRISHNA FOOD PRODUCTS, M/S. MARIAMMA R. IYER, M/S. PARLE BISCUITS PVT LTD. VERSUS THE ADDITIONAL COMMISSIONER OF CGST & C. EX [2021 (5) TMI 906 - CESTAT NEW DELHI] answered the reference holding that Parle was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle and its contract manufacturing units, including the appellant (Krishna Food), under rule 7(d) of the CENVAT Rules. The order passed by the Commissioner (Appeals) cannot be sustained and is set aside - The appeal is accordingly, allowed.

Rejection of petitioner’s claim for benefit of budgetary support - rejection on the ground that the benefit thereunder can only be allowed on goods manufactured under an 8-digit HSN code and cleared prior to 01.07.2017 - respondents rejected the claim of the petitioner on the ground that the goods manufactured by the petitioner under the Exemption Notification were different from those manufactured during the operation of the new Scheme - HELD THAT:- The goods covered under the generic head of the Tariff item HSN code 3808 under Chapter 38 are further classified under sub-heads and sub-items with 6-digit HSN code and 8-digit HSN code. Thus, HSN Code 3808 is the broad classification of different goods enumerated in the Table of the different goods/items with 6-digit and 8-digit HSN codes - Under the broad category of 4-digit Tariff Item HSN Code 3808 under Chapter 38, all such goods with 8-digit HSN code falling under it would be eligible for the exemption from excise duty in the manner provided under the Exemption Notification. Thus, if the petitioner’s unit manufactured any of the items with 8-digit code mentioned in the sub-items or sub-heads under the broad Tariff Item 3808, exemption could be sought under the aforesaid Notification in respect of the item with 8-digit HSN code. This classification structure would indicate that Tariff item HSN code 3808 is the umbrella covering all the sub-heads and sub-items under which these items with 6-digit and 8-digit HSN codes are categorised. But, there is no tariff rate mentioned against the broad items of 6-digit items like insecticides, or rodenticides, or fungicides etc. mentioned under the broad Tariff Head of 4-digit HSN code 3808. The different items under the aforesaid broad items with 6-digit HSN code (like insecticides) are further categorised with 8-digit HSN code items like Aluminium phosphite (3808 91 11), Calcium cyanide (3808 91 12), D.D.V.P. (Dimethyl-dichloro-vinyl-phosphate, 3808 91 13), Diagonal (3808 91 21) etc. and tariff rates are shown against each of these sub-items with 8-digit HSN code. Upon introduction of the new GST regime, all the notifications issued earlier under the Central Excise Act,including the Exemption Notification were rescinded. However, the Government of India took a policy decision to provide budgetary support to the existing eligible manufacturing units operating in the States of Jammu & Kashmir, Uttarakhand, Himachal Pradesh and North Eastern States including Sikkim under different Industrial Promotion Schemes of the Government of India, for the residual period for which each of the units is eligible, and introduced and notified a new scheme on 5.10.2017 vide Notification dated 05.10.2017 - Under the new Scheme, all units which were eligible under the erstwhile schemes and were in operation through notifications issued by the Department of Revenue in the Ministry of Finance, including Exemption Notification for the State (now UT) of Jammu & Kashmir were considered eligible. Under this new Scheme, the benefit is limited to the tax which accrues to the Central Government under Central Goods and Service Act, 2017 and Integrated Goods and Services Act, 2017, after devolution of the Central tax or the Integrated tax to the States, in terms of Article 270 of the Constitution. The new Scheme provides certain benefit by way of budgetary support to such units which were being granted excise duty exemption under earlier tax regime prior to introduction of GST regime. However, such budgetary support is conditional and not a blanket support. If the petitioner’s unit is eligible, is it entitled to the benefit of budgetary support? - whether the petitioner’s unit fulfils the conditions for the benefit of budgetary support? - HELD THAT:- The eligible unit must be manufacturing the “specified goods” - “Specified goods” has been defined under para 4.2 of the Scheme notification, as to mean the goods specified under exemption notifications, which were eligible for exemption under the said notifications, and which were being manufactured and cleared by the eligible unit by availing the benefit of excise duty exemption from the premises under Central Excise with a registration number, as it existed prior to migration to GST etc. In order to qualify for the budgetary support, the eligible unit must fulfil the following: (i) continue to manufacture the item covered by HSN 3808 which was manufactured earlier and, (ii) the manufacturing unit must have availed the benefit of the excise duty exemption under the Exemption Notification and, (iii) the said item must have been cleared by the manufacturing unit by availing the excise duty exemption upto 01.07.2017. Consequently, if the unit had not been manufacturing the item and had not been availing excise duty exemption under the Exemption Notification by clearing the same, the unit cannot avail the benefit of budgetary support in respect of the said item under the new Scheme. The unit must manufacture only the “specified goods” to avail the budgetary support and the “specified goods” has been defined under Para of 4.2 of the Scheme as those goods which were being manufactured and cleared by the eligible unit by availing the benefit of excise duty exemption. Thus, the specified good in respect of which the budgetary support is sought, not only, must have been manufactured by the unit and cleared by the unit by availing the benefit of excise duty exemption. Thus, manufacturing the item and availing the benefit of excise duty exemption in respect of the said good by clearing it by the unit when the Exemption Notification was in operation are condition precedents for availing budgetary support under the new Scheme, when the unit continues to produce the same good. As a corollary, if the unit had not been manufacturing the particular item covered under Chapter 38, and had not been availing the benefit of excise duty exemption by clearing it, the unit cannot seek budgetary support in respect of the item under the new Scheme - merely producing an item which is covered under the broad Tariff of 3808 will not suffice. The unit must have availed excise duty exemption by clearing it from the unit in respect of the said good to come within the meaning of “specified goods”. What is important to be noted is that the budgetary support is to be given with reference to the “specified goods” only. What can further be noted is that under the definition of “specified goods”, it does not stop by merely the item being mentioned in the Exemption Notification. There are other conditions for the item being qualified as “specified good”, i.e., the good must find mention in the Exemption Notification and it must not only have been manufactured by the unit when the Exemption notification was in operation, excise duty must have been also availed in respect of the said good by clearing it from the unit. Only, when these conditions are fulfilled, such good will qualify to be a “specified good” under the new Scheme to avail budgetary support - only such goods having the attributes of being manufactured earlier and in addition, having the benefit of excise duty availed earlier which fell under the broad Tariff Head of 3808 under Chapter 38 of the Excise and Tariff Act under the early Exemption Notification, would qualify for getting the benefit of budgetary support under the Scheme. It would not suffice as contended by the petitioner that any good being manufactured now, which fall within the category of Tariff Head of 3808 would qualify for availing the budgetary support. More is required of such good to be qualified for getting the budgetary support. If the provisions of the Scheme Notification are given the meaning as sought to be done by the petitioner, every unit which was eligible to avail exemption under any specified notification and started manufacturing new items after 01.07.2017 would claim to be eligible for budgetary support under the new Scheme, which would result in the creation of uneven playing field in respect of new units which start production/clearance of similar products but would not be entitled for the benefit of budgetary support - the respondents have clearly mentioned that goods under Tariff Headings 38089113, 38089199, 38089290, 38089340, 38089350, 38089390, 38089910 and 38089990 manufactured after 01.07.2017, were not manufactured/cleared by the petitioner prior to 01.07.2017 and as such there is no question of availing excise duty exemption prior to 01.07.2017 in respect of these goods. As these goods were not manufactured earlier and consequently, no exemption of excise duty was availed in respect of these goods, these goods are not eligible for budgetary support. The decision taken by the respondents does not suffer from any illegality or arbitrariness which would warrant interference - Petition dismissed.

Refund claim - time limitation - rejection on the ground that the claim for refund of duty paid on vehicle registered as Taxi, was filed after expiry of 6 months from the date of payment of duty, in terms of condition no. 26 (b) of Notification No. 12/2012 - HELD THAT:- The right to claim refund by the manufacturer of the motor vehicle (appellant) under Notification No.12/2012, arises on the material point or event, when the vehicle sold is registered with the Motor Vehicle Department (State Government) as an ambulance or taxi, and the manufacturer receives such information from the buyer of the vehicle along with proof. Thus, in the facts and circumstances, the limitation for refund for a manufacturer under Notification No.12/2012 under Sl.No.273, is six months from the date of registration of the vehicle as an ambulance or taxi. It is further found that the appellant - assessee have claimed the refund within a period of six months of the vehicles getting registered as taxi or ambulance. The impugned order to the extent, it has reduced refund for the amount of Rs.1,10,281/- set aside - The Adjudicating Authority is further directed to disburse the refund amount within a period 45 days from the date of receipt of this order along with interest as per rules - appeal allowed.

Reversal of CENVAT Credit - common input services - electricity used in a residential colony and power wheeled out to RSEB or used in the residential colony - penalty under Rule 15(2) of the Cenvat Credit Rules - extended period of limitation. Extended period of limitation - HELD THAT:- The issue is wholly interpretational in nature and also it is undisputed fact that the appellant have maintained proper records of the transactions and they were subject to regular inspection and audit by the Department. In this view of the matter, the extended period of limitation is not available to the Revenue. Accordingly, demand will survive only for the normal period. Reversal of CENVAT Credit - HELD THAT:- The appellant is not liable for reversal of duty on the power used in the residential township, which is situated closed to the factory of the appellant and it is an ‘industrial township’ maintained by the appellant, which requires necessary technicians and workmen on short call and as and when required for running the factory. Accordingly, the appellant is not required to reverse the proportionate cenvat credit for common input and input services towards the power used in the residential colony - the appellant is liable to reverse the proportionate cenvat credit attributable to power wheeled out to RSEB. The matter remanded to the Original Adjudicating Authority to recalculate the amount to be reversed only towards the power wheeled out to RSEB. The appellant shall be entitled to consequential benefit in accordance with law. Thus, the appeal is allowed by way of remand.

Job-work - duty liability of job-worker or supplier? - raw material supplier undertakes the responsibility of paying duty as per provisions of Notification No. Notification No. 83/94-CE, 84/94-CE or 214/86-CE - entitlement to the exemption from payment of excise duty - Wrong availment of benefit of SSI exemption Notification No. 08/2003-CE dated 01.03.2003. and Notification No. 83/94-CE, 84/94- CE or 214/86-CE - non-payment of duty on goods manufactured by the respondents as job worker - extended period of limitation - penalty - HELD THAT:- Note (6) of the SECTION V of CHAPTER 25 of Central Excise Tariff Act,1985, in relation to products of headings 2515 and 2516, specifies that the process of cutting or sawing or sizing or any other process, for converting of stone blocks into slabs or tiles, shall amount to "manufacture". It is noted that the process undertaken by the respondent on job work i.e. sawing of marble blocks into marble slabs amounts to manufacture and that a new article having a distinctive character or use has emerged from the said process. The marble slabs manufactured by the respondent falling under chapter heading 2515 are new article having a distinctive character or use and marketable, therefore eligible to levy of excise duty. A Manufacturer is the one who actually undertakes the manufacturing activity. A customer does not become manufacturer by merely supplying raw materials or getting goods manufactured according to his drawing or specification. Once the goods have been manufactured, duty liability arises and fastened on the manufacturer of the said goods as Central Excise duty is on ‘manufacture’. From the facts on record, it is found that the respondent assessees have done the job work of sawing the green marble blocks and cleared the same as such (without finishing, polishing etc.) to the principal manufacturers. It is the principal manufacturers who also have established units for processing of marble who have done the further process of finishing, polishing etc. and thereafter cleared the goods from their premises - though the respondent assessees is liable to pay excise duty on the job work goods, it is found that such duty have been wrongly calculated both with respect to the quantum of clearance and also the calculation of duty, as have been rightly observed by learned Commissioner (Appeals). Such observations have not been disputed by revenue. In the case of KARTAR ROLLING MILLS VERSUS COMMISSIONER OF C. EX., NEW DELHI [2006 (3) TMI 63 - SUPREME COURT] the Supreme Court has held that unless there is an undertaking by the principal manufacturer that they would discharge the duty liability, the job worker is liable to discharge duty on the clearances from the premises of job worker. The Tribunal in the case of ETERNIT EVEREST LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BHOPAL [2010 (1) TMI 601 - CESTAT, NEW DELHI] has been held that duty has to be demanded from job worker, and not from principal manufacturer, when transaction between the two are on principal to principal basis. It is noted that in the present case, the transaction between job worker and principal manufacturer are on principal to principal basis. It is not in doubt that the marble slabs/tiles were manufactured by the job worker and the duty liability as per excise laws is only on the manufacturer. The duty liability can be shifted to the supplier of raw materials or semi-finished goods only if the supplier gives an undertaking in terms of the notification - it is noted that the learned counsel’s argument that this is a procedural lapse. It is opined that this is a substantial condition which cannot be taken as a procedural condition, as it shifts the duty liability from the job worker to the supplier of raw materials or semi-finished goods. Until and unless this condition of giving undertaking is fulfilled, the duty cannot be fastened on the supplier of raw materials or semi-finished goods, as they were not the manufacturers of marble slabs/tiles. It is noted there are several case laws that have held that the condition of the exemption notification has to be construed strictly and if any condition is not fulfilled the same cannot be applied to a situation. Appeals of revenue allowed by way of remand to the original Adjudicating Authority with the following directions: i) To calculate the quantum of marble slabs cleared on job work basis as per the formula prescribed in the tariff. ii) To calculate the duty on the job work by taking value of job work goods (including cost of marble blocks) iii) To recalculate the SSI exemption from the turnover after taking into account the exempt and export turnover. iv) The penalty amount under Section 11AC shall also be modified accordingly. v) The respondent assessees shall be entitled to pay the reduced amount of penalty, upon such redetermination, in accordance with law. vi) We also direct the respondent assessees to appear before the Adjudicating Authority with a copy of this order and seek opportunity of hearing within a period of 45 days from the date of receipt of this order.

CENVAT Credit - fake invoices - sourcing only the Cenvatable Credit invoices without actual receipt of the goods - availment of Cenvat Credit not due on the strength of the eight invoices issued by the registered dealer - HELD THAT:- It has been an admitted position both by the supplier of goods, as well as the recipient thereof, that they have been negotiating the sales through the said two unregistered dealers. In fact the registered dealer has submitted, to negotiate supplies of manufactured goods through traders, for sale of his goods. The appellant relies heavily on Board’s of Circular no. 1003/10/2015- CX dated 05.05.2015. It is noticed that the said circular of the Board caters to a situation as herein and was based upon representations received from the trade. Vide para 3 of the circular, the Board has spelled out the purpose behind amending Central Excise Rules 2002 and inserting two provisos (third & fourth) in Rule 11(2) thereof. Para 3 of the circular states that the intendment for amendment was to allow an additional facility for direct transport of goods from the manufacturer to the consignee who avails Cenvat Credit based on the cenvatable invoices issued by the registered dealer. It further mentions that this change was so brought about to obviate the need for goods to be brought to the premises of registered dealers for subsequent transport of the goods to the consignee. For earlier period, the appellant has adverted to Circular No. 218/52/96-CX dated 04.06.1996 concerning transit sale movement of goods under Rule 52-A invoice. Moreover, even the circular referred supra clearly states that the impugned changes need to be read harmoniously keeping the governments intention in mind and that these were by way of additional facility to registered dealer for direct dispatch of goods from the manufacturer to consignee when they were issuing cenvatable invoice. When non receipt of goods by the appellant, is not substantiated, it would not be appropriate to deny them the facility of Cenvat Credit availment on the strength of the invoice of the registered dealer, duly accounted for in their RG-23A-Pt.I & II. The department’s contention of mere receipt of documents and no goods were supplied is without even a toehold of substance. It is at best only presumed or assumed that the appellants had not received the said goods as per the said cenvatable invoices issued. There is no sound basis to allege so and harbor such a belief by the department - the situation for supply of goods herein is specially provided for in Rule 11(2) proviso and it provides for availment of Cenvat Credit on the strength of the said invoices issued by the registered dealer. Further, the provisions have been made applicable mutatis mutandis in case of a first stage dealer or a second stage dealer (refer Rule 11(7) of the Central Excise Rules 2002. There is nothing to disentitle the availment of Cenvat Credit when such facility is clearly envisaged in law and the intention of the government so to do also spelled out by way of circular to promote/facilitate ease of doing business, and the elaborate circumstantial evidence indicating the receipt of the goods. Thus as the impugned goods have been found to be duly accounted for in statutory records, payments made, transportation details indicated in the invoices and as there is not an iota of evidence to suggest non-receipt of goods by the appellants, Cenvat Credit therefore cannot be denied - Also since it is not the case that no goods were produced by the appellants and also under the circumstances no alternative receipt/supply of goods for such manufacture has been brought out by the department, the charge levelled gets demolished under its own weight. The Tribunal has also so held and allowed credit in the case of M/S. DASHMESH CASTINGS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, CHANDIGARH [2015 (4) TMI 522 - CESTAT NEW DELHI]. In the case of APOLLO METALEX PVT. LTD. VERSUS COMMISSIONER OF C. EX. & S.T., NOIDA [2015 (10) TMI 960 - CESTAT NEW DELHI], the Tribunal held that it was not correct to disallow credit on the strength of invoices issued by unregistered dealer (intermediate supplier), when actual receipt of goods was not disputed. The order of the Learned Commissioner passed in appeal is therefore set aside - appeal filed by the party is allowed.

Method of Valuation - Section 4 or 4A of CEA, 1944 - goods i.e. AC/DC drives, low voltage panels / switchgear and parts, Air Circuit Breakers (ACB), Miniature Circuit Breakers (MCB), Moulded Case Circuit Breakers (MCCB) etc. packed in cartons weighing more than 25 kgs and cleared to industrial consumers through channel partners / distributors - HELD THAT:- The said issue need not dwell in much as after considering the relevant notifications and case laws on the subject in the appellant’s own case for Nelamangala Unit, this Tribunal in [2022 (5) TMI 200 - CESTAT BANGALORE] held that 'The impugned goods, in packages having weight more than 25 kg are not chargeable to duty under Section 4A, only for the reason that they are sold through channel partners; differential duty demanded on this count is set aside'. The impugned orders are set aside and appeals are allowed.

CENVAT Credit - input services - denial of credit on the ground that some of the invoices raised by the service provider were showing the address of Appellant’s registered office at Kolkata - suppression of facts or not - Extended period of Limitation - HELD THAT:- Admittedly there is no dispute that the services were received by the Appellant in their factory premises as is established from the copies of the sample Invoices provided by the Appellant. The Tribunals have been consistently holding that when the service is received and utilized in the factory and the invoices are raised in the address of the Head office, the Cenvat Credit cannot be denied. In the case of COMMISSIONER OF CUSTOMS & C. EX., VAPI VERSUS DNH SPINNERS [2009 (7) TMI 130 - CESTAT, AHMEDABAD], the Tribunal has held The Revenue in their grounds has raised only technical grounds that the documents were not in the name of the assessee’s factory situated at Silvassa but the same were issued in the name of the head office of the assessee situated at Mumbai. However, I find that there is otherwise no dispute about the input services received by the assessee. The substantive benefit cannot be denied on the procedural grounds. I do not find any infirmity in the view adopted by Commissioner (Appeals) and accordingly reject the appeal filed by the Revenue. In the case of PAREKH PLAST (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, VAPI [2011 (6) TMI 595 - CESTAT, AHMEDABAD], the Tribunal has held the denial on the sole ground of invoices being in the name of head office, is not justified. Since the issue is squarely covered by the cited case laws, appeal is allowed.

CENVAT Credit - input services - denial on the ground that the services were not covered by the scope of definition of Input Service as defined under Rule 2(l) of the Cenvat Credit Rules, 2004 - period January to March 2011 - HELD THAT:- The impugned services involved in the present case have been held to be input services by various decisions of the Tribunal - reliance can be placed in the case of COMMISSIONER OF C. EX. & CUS., VAPI VERSUS APAR INDUSTRIES LTD. [2010 (8) TMI 407 - CESTAT, AHMEDABAD], GARWARE POLYSTER LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [2011 (10) TMI 73 - CESTAT, MUMBAI], M/S. FIAMM MINDA AUTOMOTIVE LTD. VERSUS CCE, DELHI-III [2011 (1) TMI 246 - CESTAT, NEW DELHI] and M/S. COCA COLA INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT]. The impugned order is not sustainable in law and the same is liable to be set aside - Appeal allowed.

Levy of differential liability - price variation clause - clearance of aluminium ingots and coils to the said sister units upon payment of excise duty, on the basis of 110% of the estimated cost of production - when the final cost of production was worked out for the FY 2009-10, it emerged that the Appellant had on an overall basis, paid excise duty on the value which is much more than 110% of the cost of production - Revenue Neutrality - Extended period of Limitation. HELD THAT:- When excess paid duty is adjusted against the short payment that net result is that there is no short payment by the Appellant. The Adjudicating Authority failed to do this adjustment. Demanding duty onlu on the short payment, ignoring the excess payment is bad in law. Accordingly we hold that the demand confirmed in the impugned order is not sustainable. Revenue Neutrality - HELD THAT:- The entire exercise is revenue neutral as the duty paid by them will be available as credit for their sister unit - As the entire exercise would be revenue neutral, there is no loss of revenue to the exchequer. The demand confirmed in the impugned order is not sustainable. Since the demand itself is not sustainable, the interest demanded and the penalty imposed against the Appellant in the impugned order is also not sustainable - Appeal allowed.

CENVAT Credit - disallowed on supplementary invoices - levy of equivalent Penalty - period in dispute involved is August 2008 and September 2008 - whether cenvat credit is admissible to a service recipient if an invoice has been issued by the service provider much later than 14 days after the date of completion of service/receipt of payment as prescribed in Rule 4A(1) of the ST Rules? - HELD THAT:- The issue in dispute is no longer res integra as it stands settled in favour of the Appellant by decision of the Hon’ble Madras High Court in THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. JSW STEELS LTD., THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, [2017 (8) TMI 592 - MADRAS HIGH COURT] where it was held that Rule 4A of the Service Tax Rules, 1994, inter alia, at the relevant time, required the provider of taxable service, to issue, not later than fourteen days from the date of provisioning of taxable service, an invoice, bill or challan. The details, which were to be provided in such an invoice, bill or challan, are also set out in the Rule. Thus, cenvat credit cannot be disallowed in the hands of the service recipient by invoking Rule 4A (1) of the ST Rules even if the service provider issues such invoice beyond the prescribed period of 14days from the date of completion of service/receipt of payment. The obligation to issue the invoice timely has been cast on the service provider and not the service recipient. Moreover, the period prescribed in the said Rule is directory and not mandatory as has been held by the Hon’ble High Court. Whether the supplementary invoices are specified documents in terms of Rule 9(1)(f) of CCR 2004? - HELD THAT:- This issue is also no longer res-integra asit is settled by the decision of the co-ordinate Bench of this Tribunal in M/S DELPHI AUTOMOTIVE SYSTEMS (P) LIMITED VERSUS CCE, NOIDA [2013 (12) TMI 156 - CESTAT NEW DELHI] where it was held that supplementary invoice evidencing payment of additional duty amount is not to be treated on a different footing vis-a-vis the original invoice evidencing original payment of duty as both these documents were issued under the same provisions of law. The submission is also agreed upon that during the period in dispute there was no restriction for availing cenvat credit and such credit would be admissible even assuming that the tax that has been paid by the service provider is due to deliberate evasion on his part for the period prior to 01.04.2011. The impugned order cannot be sustained and thus, the same is set aside. The demand for recovery of CENVAT Credit, interest and penalty are set aside - appeal allowed.

Scope of the supply order placed by the PSU on the manufacturer - impact of the Central excise exemption scheme - area-based exemptions - Refund of Excise Duty under MODVAT Scheme - special conditions of the purchase orders placed by the SICOP, challenged - It was pleaded that since the SSI Units, which had been earlier placed the supply orders and the writ petitioners formed a single class and, therefore, there could not have been different terms and conditions of supply incorporated in the supply orders placed with the writ petitioners - HELD THAT:- The plea of discrimination raised by the writ petitioners is predicated on the ground that in the supply orders issued by SICOP for purchase of AAC/ACSR conductors with the local manufacturers as well as two outside manufacturers, there was no condition akin to Clause 13(v). Specific mention is made of the supply order placed with M/s Jaldara Conductors Pvt. Ltd, Jaipur, and supply order placed with M/S Ashok Transmission Wire Pvt. Ltd, Jaipur, both dated 23rd August, 1986. The writ petitioners also invited our attention to certain supply orders made by SICOP to the local manufacturers in the year 1986 and 1987 to hammer the point that clause similar to Clause 13(v) providing for transfer of benefit under MODVAT scheme to the purchaser(s) was not incorporated in the supply orders issued to such local SSI units. The plea is refuted by the respondents - From the reading of pleadings of both the sides, it clearly transpires that there is no dispute with regard to the fact that the supply orders issued by appellant No. 2 directly to M/S Jaldara Conductors Pvt. Ltd, Jaipur, and M/S Ashok Transmission Wire Pvt. Ltd, Jaipur, dated 23rd August, 1986, did not contain any condition, as is contained in Clause 13(v) of the supply order dated 12th January, 1987 and Class (ii) of purchase orders issued by SICOP in favour of the writ petitioners. These supply orders were directly between appellant No. 2 and the units outside the State. From the reading of these two supply orders, it becomes abundantly clear that these were issued after initiating the process of tenders and receiving offers from the intending suppliers. The rates to be charged for different items of goods like AAC/ACSR and the terms and conditions of the supply were those which were mutually settled between the parties. The supply orders in question issued in favour of the writ petitioners and the supply orders issued in favour of local SSI units and some outside units are not issued simultaneously but pertain to different point of time. In the instant case, the supplies from the writ petitioners were procured by the appellants through SICOP. In the supply order issued by the appellants in favour of SICOP, it was clearly mentioned that the SSI units, who would enter into arrangement with SICOP for supply of AAC/ACSR conductors, would transfer the benefit, if any, received by them under MODVAT scheme - The writ petitioners were aware and entered into contract with their eyes wide open. The SICOP framed the supply order after discussion with the writ petitioners and after having regard to all commercial aspects of the transaction. The writ petitioners accepted the supply orders and made the supplies strictly as per the terms and conditions laid down in the supply orders. However, later on, it seems finding that the appellants had directly placed certain orders with outside units without imposing such conduction, the writ petitioners made representation to the respondents. The representation made by the writ petitioners came under active consideration of the respondents, who, after weighing all pros and cons of the matter, concluded that it was not possible to revoke the condition which was included in the supply orders in consultation with the writ petitioners and more particularly when 80% of the supplies had already been made by the writ petitioners - it is very difficult to say that the writ petitioners herein and the local as well outside manufacturers, who were also given supply orders by the appellants for procurement of certain items, form a single class. Each contractual transaction is independent transaction between two parties. The relationship of two contracting parties is governed by the terms and conditions of the contract. Even in the case of Government, it is very unwise to expect that the State would enter into contracts for supply of various items with various persons by having same and identical terms and conditions. Clause 13(v) of the supply order issued by the appellants in favour of SICOP and Clause (ii) of the special conditions of the supply orders issued by SICOP in favour of the writ petitioners and we find that these clauses incorporated in the supply orders were only as a bargain to seek some discount or concession from the suppliers in lieu of placing bulk supply orders with them without even inviting tenders and making the writ petitioners to compete with outside manufacturing units. The transfer of benefit of refund of excise duty by the writ petitioners to the Purchasing Department i.e., the appellants herein, was part of a bargain struck between the two parties under which one party i.e. SICOP, was to issue the supply orders for procurement of AAC/ACSR conductors in favour of the writ petitioners and the other party i.e. the writ petitioners herein, were to make supplies on the mutually agreed/settled rates of the items with a further benefit to the Purchasing Department in the shape of transfer of benefit of refund of excise duty available to the writ petitioners under MODVAT scheme. There are nothing wrong or unholy in the arrangement. The legal position in this regard is well settled. Unless the Court finds a condition in the contract entered into between the two parties unconscionable, it would be loath to interfere in the matter. The impugned condition is found neither unconscionable nor in violation of any statutory provision. Rather this Court has found this condition a result of negotiations between two contracting parties which ultimately resulted into a concluded contract coming into existence between them. Comparing this contract with other contracts executed at different points of time and even between different parties would not be justified. The plea of discrimination raised by the writ petitioners is thus not supported by any legal or fact situation obtaining in the instant case. The Writ Court has not considered all these aspects and has, without any justification, held Clause 13(v) discriminatory in nature. Clause 13(v) is contained in the supply order issued by the appellants in favour of SICOP and, therefore, there was no privity of contract between appellants and the writ petitioners giving them any cause of action or locus to challenge the said Clause. The Clause (ii) of the special conditions of the supply order which the SICOP issued in favour of the writ petitioners has not been considered, discussed or dealt with by the Writ Court - Clause (ii) of the special conditions is similar and akin to Clause 13(v) and in view of discussion, there are no fault found with Clause 13(v), so is the position with Clause (ii). The writ petitioners have not been able to make out any case of discrimination between them and the outside manufacturers/local SSI units and, therefore, the decision of the Writ Court cannot be upheld - Appeal allowed.

Quantum of duty payable by the respondents - manufacturing and clearing of gutkha under the brand name India Gold - retrospective effect of amended Rule 17(2) of PMPMR-2008 - failure to consider the actual intent of the legislation as mentioned in Rule 17(2) of PMPMR-2008 - HELD THAT:- It is material to note that the premises of respondent no. 1 was searched on 04.08.2008. As on the date of the said search, Rule 17 as set out above was applicable. Respondent no. 1 is not registered with the Excise Department and there is no dispute that the Adjudicating Authority has determined the duty payable in terms of Rule 17(2) of the PMPM Rules as in force on the date of the search. It is material to note that Rule 1(2) of the Second Amendment Rules expressly provides that “they shall come into force on 20.10.2008”. Thus, the contention that Rule 17(2) as amended by Second Amendment Rules would also apply to searches conducted prior to 20.10.2008 militate against the express language of Rule 1(2) of the Second Amendment Rules. Further, the contention that the language of Rule 17(2) as amended by the Second Amendment Rules, makes it explicit that it would apply from 01.07.2008, is unpersuasive. A plain reading of Rule 17(2) as amended by the Second Amendment Rules indicates that it provides for the manner of computing the duty payable in respect of goods manufactured or cleared from the unit, which is not registered with the concerned Central Excise office - Undisputedly, the duty is liable to be computed on the presumption that the machines found at such premises are in operation since 01.07.2008. The duty is required to be calculated by applying the appropriate rate of duty, as specified in the Notification No. 42/2008 – C.E. dated 01.07.2008, to the number of packing machines operating in the factory during that month. In the present case, it cannot be accepted that it is implicit in the provisions of the amended Rule 17(2), that it applies retrospectively for purposes for determination of duty in respect of searches conducted prior to 20.10.2008. Undisputedly, for searches conducted after the Second Amendment Rules came into force, the duty would be determined by assuming – unless established to the contrary – that the machines found were operative from 01.07.2008 and by applying the computational provisions of Rule 7 of the PMPM Rules. There are no ground to interfere with the impugned order. The questions projected by the Revenue are answered against the Revenue - appeal dismissed.