TMI Blog2015 (2) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants own evidence. In view of the decision of Tribunal in the case of Modern Food Industries Ltd (1988 (7) TMI 190 - CEGAT, NEW DELHI) the transfer of the amount of their sister unit by book adjustment would be treated as amount charged to the other unit. In our considered view, the Adjudicating Authority rightly confirmed the reversal of credit. The case of SRF Ltd (2014 (2) TMI 280 - MADRAS HIGH COURT) relied upon by the Ld Advocate would not be applicable in the present case. In that case, the Hon ble High Court remanded the matter to the Tribunal for factual adjudication. In the present case the Hon ble Supreme Court remanded the matter to the Adjudicating Authority with certain directions on factual basis. So, the order of recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication order. The Revenue filed an appeal before the Hon ble Supreme Court against the order of the Tribunal. 2. By judgment dtd 17/8/2008 in Civil Appeal No 5556-5558 of 2009 and 5559-5560 of 2009 (Commissioner of Central Excise, Bhavnagar vs Ultratech Cements Ltd and others), the Hon ble Supreme Court allowed the appeals filed by the Department and remanded the matters to the Adjudicating Authority with directions as under: For the reasons given in our judgement delivered today in the case of M/s Maruti Suzuki Ltd v. Commissioner of Central Excise, Delhi III - civil Appeal No______ of 2009 (arising out of S.L.P (C) No 2826 of 2009), the civil appeals herein filed by the Department are allowed and the matters stand remitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the appellant company had not charged any price to M/s Ashoka Spintex. Therefore, there is no question of reversal of credit in terms of the Hon ble Supreme Court. He further submits that the Adjudicating Authority erroneously proceeded on the basis of Journal Voucher entries, which are mere book adjustment. They have not charged any price to the other units. So, the order of recovery of the Cenvat Credit is not sustainable. 4.1 He, further, submits that without prejudice, the demand of interest is not sustainable. It is contended that the amount of Cenvat Credit of about ₹ 1.72 crores was not used by them, which is lying in the Cenvat account till the order of the Tribunal. The credit was not utilised till 12.9.2007. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (Tri). 5.1 Regarding the demand of interest, he submits that the utilisation of the input credit is not relevant. It is contended that they have availed the credit and therefore, they are liable to pay the interest as hold by the Hon ble Supreme Court in the case of UOI vs Swift Laboratories 2011(265)ELT.3 and followed by the Hon ble Madras High Court, in the case of CCE vs Sundaram Fasteners. He also relied upon the decision of this Bench in the case of M/s Gujarat Guardians Ltd vs CCE ST., Surat - 2014(2)TMI.276.CESTAT, Ahmedabad. 6. Ld Advocate, in rejoinder, submits that on the identical situation the Hon ble High Court of Madras in the case of CCE, Chennai vs SRF Ltd 2013(298)ELT.521 (Mad.) remanded the matter to CESTAT factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged or recovered any price is not tenable. Therefore, M/s Arind Ltd, Naroda Road, Ahmedabad is liable to pay proportionate cenvat credit of R 2,48,59,319/- which they had suo moto re-credited vide entry No 1106 dated 27.4.2004. However at the time of hearing, they submitted that they were not required to reverse proportionate cenvat credit on the naphtha used for generation of steam on the ground that the steam was directly used in their factory. As there is no contrary evidence, I am accepting the Chartered Engineer s certificate dtd 21.12.2009. As per Supreme Court s order they are required to reverse cenvat credit only on that quantity of naphtha utilised for generation of electricity supplied to other unit, joint venture etc. In thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer memos are indicative of their being monetary consideration in the transaction between the transfer and transferee. Merely because there is no payment in cash or because there is book adjustment, it cannot be claimed that there has been no sale. Book adjustment is also a form of payment. Once we hold that these transactions are in the nature of sale, then it is quite clear that the learned Collector (Appeals) has erred in coming to the view that the goods are not ordinarily intended for sale . The fact is, that they are in fact manufactured for sale to the sister units. 10. In view of the decision of Tribunal in the case of Modern Food Industries Ltd (supra) the transfer of the amount of their sister unit by book adjustment woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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