TMI Blog2015 (1) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessments at his end cannot be reopened on the ground that input supplier should not have paid duty in which case the credit of the same would be available to the manufacturer/exporter - Following decision of M/s OLEOFINE ORGANICS (INDIA) PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE, THANE-I [2013 (7) TMI 157 - CESTAT MUMBAI] - Decided in favour of assessee. - E/59117, 59249, 59251, 59509, 59618, 59635, 59667, 59752-59753, 59604, 59842, 59882-59883 and 59844-59845/2013 - Final Order Nos. A/53271-53285/2014-EX(DB) - Dated:- 23-7-2014 - Ms. Archana Wadhwa, Member (J) and Shri Rakesh Kumar, Member (T) Shri B.L. Narasimhan, P. Krishnan, Bipin Garg, Jaydeep Patel, Rupendra Singh and Jatin Mahajan, Advocates, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 44/2001-C.E. (N.T.). Such invalidated advance licences were given by the manufacturers to the supplier of various raw materials. The supplier instead of availing the benefit of notification, in question, which is subject to observations of a procedure, cleared their raw material on payment of duty. The duty so paid by the supplier was availed as a credit by M/s. Balkrishna Industries Limited. The Revenue s objection is that the suppliers of the raw material should have availed the benefit of Notification No. 44/2001-C.E. (N.T.) and should have cleared the raw materials without payment of duty, in which case M/s. Balkrishna Industries Limited was not entitled to avail the credit of duty paid on the inputs procured by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the invalidated licences, there was no purpose for receiving the same from the manufacturer exporter. He submits that the said practice has been going on for a long period and there seems to be some mala fide on the part of the input supplier to procure the invalidated licences and not to use the same subsequently. However, he fairly agrees that the issue stand decided by the decision of the Tribunal, but submits that the said decision has been appealed against before the Hon ble Bombay High Court, but there is no stay on the same. 6. After appreciating the submissions made by both the sides, we find that the Tribunal in the case of Oleofine Organics (India) Pvt. Ltd. v. CCE, Thane-I reported in 2014 (299) E.L.T. 91 (Tri.-Mumbai) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order, Tribunal judgment in the case of M/s. Reliance Industries Ltd. reported in 2009 (244) E.L.T. 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 are not relevant to the facts of the present case. In fact, in the case of M/s. Reliance Industries Ltd., duty was being paid by the supplier and no objection was raised by the Department. Objection raised was relating to valuation of supplies made. We also find the issue is exactly the same as decided by the Tribunal in the case of Shakun Polymers Ltd. v. CCE reported, in 2009 (241) E.L.T. 250 (Tri.-Ahd.). We do not find any reason not to follow the same . As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple case of payment of duty where it was not required to be paid and availment of credit of this duty by the recipient of goods. Similarly, the learned Commissioner of Central Excise, Belapur who dropped the demand in the case of M/s. I.G. Petrochemicals in an identical matter, also did not have the benefit of contents of the D.G.F.T. Policy Circular No. 16 (RE-2012/2009-14), dated 15th March, 2013. Therefore, in view of subsequent development both these orders cannot be applied to the instant case. 8. As is seen from above, the Commissioner is not disputing the fact that the issue stands covered by the precedent decision of the Tribunal in the case of Oleofine Organics (India) Pvt. Ltd. v. CCE, Thane-I (supra), but has chosen not to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 2 above, no refund of TED should be provided by RAs of DGFT/Office of Development Commissioners, because such supplies are ab initio exempted from payment of excise duty. 4. This issue with the approval of DGFT. (Jay Karan Singh) Joint Director of Foreign Trade Telephone No. 23063249 E-mail : Jaykaran.singh@nic.in 9. As is seen from the above Circular, the same relates to the refund of the terminal excise duty and is nowhere concerned about the availment of the Cenvat credit of duty paid on the inputs by the input supplier. As such, we find that the Commissioner reliance on the said Circular was not called for. 10. Apart from above, we also note that this is well settled law that a manufacturer is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
