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M/s Isibars Limited Versus Commissioner of Central Excise, Raigad

2015 (7) TMI 226 - CESTAT MUMBAI

CENVAT Credit - whether the appellant is entitled to Cenvat Credit in respect of furnace oil used in the manufacture of goods on job work basis and cleared without payment of duty under notification No. 214/86-CE dated 25/3/1986 - Held that:- Since the present appeal has attained finality in assessee's own previous case [2010 (3) TMI 1056 - CESTAT MUMBAI] - Appellant is entitled for re-credit of amount reversed by them in respect of furnace oil subject to verification of the said amount by adjud .....

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ORDER Per: Ramesh Nair: This appeal is directed against Order-in-Appeal No. AT/M-III/141/2004 dtd. 25.10.2004 dtd. 25/10/2004 passed by the Commissioner of Central Excise (Appeals) Mumbai- III, wherein Order-in-Original No. Raigad/KPL/RC.10/2003-04 dated 27/2/2004 was upheld and appeal filed by the appellant was rejected. The issue involved in the present case is that whether the appellant is entitled to Cenvat Credit in respect of furnace oil used in the manufacture of goods on job work basis a .....

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judicating authority rejected the claim on the ground that the Order-in-Appeal dated 14/7/2003 was appealed against before the CESTAT Mumbai. Aggrieved by the said order the appellant filed appeal before the Commissioner (Appeals) who vide impugned order rejected the appeal of the appellant once going into merit of the case. However it was noticed that said appeal of the Revenue has been dismissed by this Tribunal vide Order no. A/102/2010/EB/C-II dated 23/3/2010 wherein it was held that the app .....

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RJB/M/III/307/2003 dated 22/8/2003 and same was upheld by this Tribunal, therefore rejection of claim is absolutely wrong and illegal. She also submits that against Order-in-Appeal dated 14.7.2003 in the appeal of the Revenue there was no challenge to the issue of unjust enrichment which has been decided by the Commissioner (Appeals) in his order dated 14/7/2003 wherein Commissioner (Appeals) had given categorical finding that principle of unjust enrichment is not applicable in view of the provi .....

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f the Revenue reiterates the findings of the impugned order. However he agrees that in the first round of litigation admissibility of the Cenvat Credit on furnace oil in the appellant own case has been decided in their favour by this Tribunal vide order dated 23/3/2010. 4. We have carefully considered the submissions made by both the sides and perused the record. 5. We find that the issue involved is admissibility of Cenvat Credit in respect of furnace oil used in manufacture of job work goods i .....

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et aside by the Commissioner (Appeals) vide order in appeal dated 14.7.2003 wherein he passed following order: I have carefully looked into the facts and recores of the case in the light of submissions made in appeal and at the time of hearing. Rule 6(1) of the Cenvat Credit Rules, reads as under: The CENVAT credit shall not be allowed on such quantity of [input used in or in relation to the manufacture of exempted goods or for provision of exempted services, or input service used in or in relat .....

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t for receipt, consumption and inventory of inputs meant for use in the manufacturer of exempted goods, and take Cenvat Credit only on that quantity of inputs which is intended for use in the manufacture of dutiable goods. Rule 6(2) further provides that in case of common inputs used in the manufacture of duty paid as well as exempted goods. The manufacture of duty paid as well as exempted goods, the manufacturer shall pay an amount equal to 8% of the price of the exempted goods. It is thus clea .....

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either any Cenvat Credit is required to be reversed for such inputs used in the manufacture of final products cleared without payment of duty nor such final product are called upon to pay an amount of 8% of the price. As regards the question of unjust enrichment, I find that thte principle of unjust enrichment is not applicable in view of the proviso (c) to sub-section 2 of Section11B of the Central Excise Act which carves out an exception in respect of cases involving credit of duty. The Apex C .....

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was challenged by the Revenue before the CESTAT in appeal NO. E/3093/03 which was disposed of by this tribunal vide order no. A/102/2010/EB/C)-II dated 23/3/2010 wherein tribunal has passed following order: 2. In the present appeal filed by the Revenue against the appellate Commissioner's order, it is submitted that the benefit of Rule 57AD(2) of the Central Excise Rules, 1944 and Rule 6(2) of the Cenvat Credit Rules cannot be extended to fuels including furnace oil. We have not found any el .....

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to the principal manufacturer without payment of duty. In this context, the learned counsel has relied on the Tribunal's Larger Bench decision in Sterlite Industries (I) Ltd . v. CCE, Pune - 2005 (183) E.L.T. 353 (Tri.-LB). 3. The Larger Bench was dealing with a similar factual situation. Following the Apex Court's ruling given in Escorts Ltd . v. CCE - 2004 (171) E.L.T. 145 (S.C.), the Larger Bench held that Modvat credit of the duty paid on the inputs used in the manufacture of final p .....

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decision proceeded on the premise that Rule 57C was not applicable to a job worker who claimed Modvat credit on inputs used in or in relation to the manufacture of the job-worked goods. In other words, the job-worked goods cleared by the job worker to the principal manufacturer were not recognised to be exempted for purposes of Rule 57C. Those goods were dutiable in the hands of the principal manufacturer who admittedly paid duty thereon. 4. The learned counsel has further pointed out that the a .....

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