9911796707
TMI Blog2010 (2) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... strial Enterprises Ltd. Lalru CCE Chandigarh 14,78,278/- 2007-08 644- 673/CE/CHD/08 dated 16-12-08 3. 195/183- 201/09-RA -do- -do- 2007-08 -do- 4. 195/208-09/09-RA -do- -do- 17,99,800/- 2004-05 15-16/CE /CHD/ 2009 28-1-2009 5. 195/586/ RA-CX., Dt. 26-6-09 M/s. Nahar Spinning Mills Ltd. M&D Unit. CCE Chandigarh 2,23,376/- Feb.-Oct., 05 06/CE/ CHD/09 21-1-09 6. 195/211/09/RA-Cx., Dt. 20-5-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit CCE Chandigarh 25,41,229/- Jan. 07 - Jan. 08 165-167/CE/ CHD/2009 19-3-09 7. 195/623-625 /09/RA-Cx Dt. 28-7-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit CCE Chandigarh 2,58,254/- 5,76,693/- Oct., 04 to Jan., 05 165-167/CE/ CHD/2009 19-3-09 8. 195/596-622 /09/RA-Cx Dt. 28-7-2009 M/s. Nahar Spinning Mills Ltd. M&D Unit &. M/s. Nahar Industrial Enterprises Ltd. CCE Chandigarh 28,59,013/- 45,28,619/- Oct., 07 to May, 08 134-161/CE/ CHD/2009 18-3-09 2. As the issue involved in all these revision applications is the same, so these are taken up together for disposal. 3. Brief facts of the cases are that the applicant namely M/s. Nahar Industries Enterprises & M/s. Nahar Spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .E. 3.3 That the respondent opted for full exemption from payment of Central Excise duty under Notification No. 30/2004-C.E. and had not availed Cenvat credit on inputs used for manufacturing the final products and the same satisfies the condition of Notification No. 30/2004-C.E. The clearance of finished goods for export should be at NIL rate of duty. 3.4 That proviso to Notification No. 30/2004-C.E., dated 9-7-2004 provided that "nothing contained in this Notification shall apply to the goods in respect of which credit of duty on inputs has been taken under the provisions of Cenvat Credit Rules, 2002." In view of this, intention of the legislature is very clear that even If the respondent who had been working under the provisions of Notification No. 30/2004-C.E., and had not been availing Cenvat on inputs, avails Cenvat credit of duty paid on capital goods, they were required to work under the provisions of Notification No. 30/2004-C.E. and were therefore required to clear the goods at Nil rate of duty. 3.5 That the respondent is also not eligible to claim refund of unutilized Cenvat credit of capital goods under Rule 5 of the Cenvat Credit Rules, 2004 as the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Customs (hereinafter referred to as C.B.E.C.), further strengthens the aforesaid stand taken by the applicant in respect of rebate of duty on exports, C.B.E.C. issued a Circular No. 687/3/2003-CX., dated 30-1-2003, clarifying that the duty paid through actual or deemed credit account on the goods exported, must be refunded in cash. It is a well-settled position of law that the circular issued by the board is binding on the Revenue Authorities. Therefore, the order-in-appeal, denying the rebate claim to the extent of actual amount of duty paid by the applicant on exports, is contrary to clarification iIssued by the Board and hence liable to be set aside. 6.4 The applicant relies upon the judgment in case of Everest Convertors v. CCE, Calcutta reported as 1995 (80) E.L.T. 91 (Tribunal) wherein, the Hon'ble Calcutta Tribunal has categorically held that Notification having character of exemption cannot be forced upon an assessee if it does not suit him. If this character of notification under Section 5A is ignored, and it is forced upon an assessee, then the power under Section 5A would have been simply a power to fix rates of duty. If an assessee does not claim the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty paid on exports and credit of Duty cannot be restricted to effective or applicable rate of Duty given under a particular Notification. In the light of these decisions of the Tribunal, it is beyond doubt that the Applicant is entitled for refund/rebate of Duty to the extent of actual amount of Duty paid on exports. Therefore, the contention of the department is illegal and unsustainable in law. 6.7 Further, on the facts similar to the matter in hand, the Hon'ble CESTAT in case of Gayatri Laboratories Pvt. Ltd. v. CCE, Mumbai - 2006 (194) E.L.T. 73 (Tri. - Mumbai) held that even if duty paid at the rate specified in the Tariff Act, the rebate claim cannot be disallowed. 6.8 That the applicant further submits that for rejecting the rebate claim, the Respondent has baselessly relied upon the declaration filed by the applicant on 8-9-2004. In the said declaration, the applicant had declared that they have not taken Cenvat Credit on inputs w.e.f. 1-9-2004 and the finished goods manufactured from those inputs would be cleared under Notification No. 30/2004-C.E. In this regard it is submitted that the Circular No. 795/28/2004-CX., dated 28-7-2004, categorically provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification is not suited to him therefore merely satisfying the condition of Notification No. 30/2004-C.E. does not mean that respondent is bound to avail the said Notification. It has further been alleged by the Revenue that the applicant has utilized the Cenvat Credit for payment of duty to convert unutilized credit into cash as the applicant has not availed credit on inputs utilized in the manufacture of export goods. In this regard it is submitted that the Cenvat Credit Rules, 2004 contains provisions for taking and utilization of Cenvat credit paid on inputs and capital goods used in the manufacture of final goods. The statute clearly provides for utilization of Cenvat Credit for payment of duty for any final product. There is no restriction casted on to the manufacturer to utilise the credit earned on inputs for payment of duty on only those final products which are manufactured out of such inputs. The credit so available to the applicant can be utilized for the payment of duty on any final product and for discharging the duty liability for the period. There is no direct nexus of utilization of the credit earned on inputs vis-a-vis goods manufactured out of such inputs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue at all levels starting from adjudicating stage. Therefore, at this stage the Revenue is not permitted to deny the total cash rebate. 6.17 The action of the Revenue is barred by the Doctrine of Estoppel. Once the issue that the cash rebate of 4% is admissible to the Applicant is settled between the parties and has not been challenged at any stage, the Revenue is stopped from taking a U-turn for denying the cash rebate. In the case of Associated Polymer Industries v. CCE, Kolkata - 2008 (227) E.L.T. 449 (Tri. - Kolkata) = 2009 (13) S.T.R. 193 (Tri.-Kolkata) Hon'ble Tribunal has held that department having not appealed against the earlier order, these orders have attained finality and similar demands raised on the same set of facts and circumstances, cannot be sustained in view of earlier orders of the Tribunal. This view has been approved by Hon'ble Apex Court in another case of Marsons Fan Industries v. CCE, 2008 (225) E.L.T. 334 (S.C.) that where the department has accepted the decision pertaining to the assessee itself on the similar goods, it is not permitted to take another stand in respect of similar issue in fresh proceedings. 6.18 In another case Hon'ble Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s consumed in the manufacture of final product. The applicants were availing both the aforesaid Notifications simultaneously in terms of clarification issued by the C.B.E.C. vide its Circular No. 795/28/2004 dated 28-7-2004. The basic condition for availing exemption under Notification No. 30/2004-C.E., dated 9-7-2004 was that the applicant is not allowed to take Cenvat credit on the inputs utilized for manufacturing/processing of the finished goods. Whereas for availing benefit under Notification No. 29/2004-C.E., dated 9-7-2004, there was no such condition of availing or not availing of the Cenvat Credit on the inputs utilized for manufacturing/processing of the finished goods. 10. During the relevant period, the applicants were clearing the goods for export after paying the concessional rate of excise duty 4% or 8% in terms of Notification No. 29/2004-C.E., dated 9-7-2004 and filing the rebate claims under Rule 18 of the Central Excise Rules, 2002. The applicants were not availing the cenvat credit on the inputs used in the manufacture of the exported goods just to claim higher duty drawback. The applicant was also clearing their finished goods for home consumption under N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment observes that the purpose of this clarification was only to check that the manufacturer should not claim cenvat credit on the inputs and avail exemption under Notification No. 30/2004-C.E., dated 9-7-2004 simultaneously. For availing Notification No. 29/2004-C.E., dated 9-7-2004, there is no such condition of availing or not availing of the cenvat credit on the inputs utilized in manufacturing of finished/exported goods. 12. Government further deserves that M/s. Nahar Industries Enterprises Ltd. has filed a declaration vide their letter dated 8-9-2004 to work under Notification No. 30/2004-C.E., dated 9-7-2004. In this respect, the applicant has submitted that they have given this declaration only in respect of stock lying at that time. Moreover, there was no legal requirement for filing any declaration under Notification No. 29/2004-C.E. and 30/2004-C.E. both dated 9-7-2004 to work under those notifications. No such declaration was filed in respect of M/s. Nahar Spinning Mills. They were clearing these finished goods under both the Notifications No. 29/2004-C.E. and 30/2004-C.E., dated 9-7-2004 for home consumption. They were not availing cenvat credit on the inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Guntur - 2007 (210) E.L.T. 543 (Tri.-Bang.) and Eicher Motors Ltd. v. CCE, Indore - 2001 (129) E.L.T. 734 (Tri.-Del.) 14. Following the ratio of the above said order of the revisionary authority as upheld by the Hon'ble High Court of Punjab and Haryana, Govt. observes that the applicants were entitled to the rebate claims in cash in respect of duty paid under Notification No. 29/2004-C.E., dated 9-7-2004. If any duty debited in excess of rates specified in the said Notification by the applicant, the same is nothing but a deposit made voluntarily by them which is refundable in the manner of allowing re-credit in cenvat credit account from where it was debited. 15. In view of above discussions and findings. Government sets aside the impugned orders-in-appeal and allows the revision application to the above extent subject to the condition that applicants have maintained separate books of accounts for goods availing of Notification No. 29/2004-C.E. and for goods availing of Notification No. 30/2004-C.E. and followed the provisions of Board's Circular No. 795/28/2004-CX, dated 28-7-2004 and 845/3/2007-CX, dated 1-2-2007. 16. Revision applications are disposed off ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
