TMI Blog2016 (4) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Account on inter-unit transfer of credit from DT Division to the Assessee, by a common pool. In any event, substantial benefit of the Assessee of utilisation of Cenvat Credit by a common pool cannot be denied by a technical infraction of provision of law, if any. In view of the above discussions, we hold that the assessee rightly utilized the Cenvat Credit transferred by DT units, for clearance of the goods for home consumption during the period April 2005 to Sept. 2009 as the Assessee was holding single registration certificate during the said material period. Accordingly, the demand of Cenvat Credit alongwith interest and penalties are set aside. The penalty imposed on Shri Deepak Prabhakar Marathe, General Manager and Authorised Signatory of the assessee, is also set aside. The appeals filed by the appellants are allowed. The application for extension of stay is dismissed as infructuous. - Decided in favour of assessee - Appeal No. E/10295,10296/2013 & Appln No MA(Extn)15419/2014 - Order No. A/10145-10146 / 2016 - Dated:- 3-2-2016 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri C.Harishankar, Sr. Advocate Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 the Deputy Commissioner of Central Excise allowed a common R.C. to the assessee for all the three units vide R.C. No AAACG8932CXM002 and the other R.Cs. were cancelled. The Deputy Commissioner allowed maintenance of a single consolidated PLA/Cenvat Account for all three units. (v) Subsequently, by letter/order dated 24.1.2005 the Deputy Commissioner withdrew the facility of maintenance of single consolidated PLA/Cenvat credit account for different units. The Assessee filed appeal before the Commissioner (Appeals) against order dtd 24.1.2005 of the Deputy Commissioner, for withdrawal of the said facility. (vi) The Assessee by letter dtd 28.2.2005, again requested the Deputy Commissioner of Central Excise for separate registration for all their three units, as they wanted to avail the benefit of Notification No 30/2004-CE, dtd 9.7.2004 as amended. (vii) By order/letter dtd 11.3.2005, the Deputy Commissioner rejected the request of the appellant for separate R.C. for three units, aginst which the appeal was filed by the Assessee before the Commissioner (Appeals). (viii) By OIA dtd 12.4.2005, the Commissioner (Appeals) allowed the appeal of the Assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pak Prabhakar Marthe filed these appeals. 3. Shri C Harshanker, Ld Sr. Advocate, with Shri S Sunil, Ld Advocate, appearing on behalf of the appellants submits that the entire case was made out on an erroneous basis that on 15.4.2004 the three units are to be considered as three separate registered unit as the Assessee requested for three separate R.Cs. He drew the attention of the Bench to OIA dtd 12.4.2005 and OIA dtd 31.8.2005 of the Commissioner (Appeals) that the company will be eligible to have separate R.C. for their three units and, if this decision is implemented, the three units would have required to maintain separate PLA as well as Cenvat Credit account for the different units. The Dept. challenged the order of the Commissioner (Appeals), before the Tribunal, the Honble High Court and Supreme Court. In fact, after the order of the Honble High Court, the Deputy Commissioner of Central Excise on 23.9.2009 granted separate R.C. for other two units. So, the Assessee rightly maintained a single consolidated Cenvat Account/PLA for the purpose of discharging duties for clearance of the goods for home consumption during the period 15.04.2005 to 22.09.2009, and therefore DT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and Service Tax paid on Input, Input Service and Capital Goods and the expression used for such credit in the said Rule 2004 is Cenvat Credit. So, the aforesaid expressions do not connote the same meaning and are not synonymous. The Deputy Commissioner by letter dtd 28.7.2004 directed to maintain a consolidated Cenvat Account and there is no mention of Cenvat Credit. So, the transfer of cenvat credit from DT unit to the Assessee was not permitted by letter dtd 28.7.2004. It is not correct to say that the said letter permitted the Assessee to maintain a consolidated Cenvat Credit account. 6. It is also submitted that with effect from 15.4.2005 till 23.9.2009, the Assessee paid Cenvat Credit on its clearance of goods to DT unit and the DT availed Cenvat Credit and recorded in Cenvat Credit account. Again, at the end of each month DT unit transferred by one single entry the credit availed by it to the Cenvat Credit account maintained by the Assessee, the duty so transferred to the Cenvat Credit account maintained by the Assessee was used for the clearance of DT unit and PFY unit. In the present case, four show cause notices proposed demand of CENVAT Credit in respect of utiliza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon as they received the Order of the Appellate Commissioner in their favour. Despite applying for a separate registration on 28.02.2005 and on 15.04.2005 after the receipt of the Appellate Order, they continued to keep a common record of the assessee and their DT Division. It is obvious that as soon as the Appellate Commissioner had held in their favour, they should have segregated heir records related to all three Units, especially those of DT Division and the assessee. They should have started filing different returns for the assessee and their DT Division immediately, which has not been done. Despite having this clear knowledge, they filed common returns for the assessee and their DT Division, which is quite misleading. 10. As the Assessee and the other units had been considered as separate units as on 15.4.2005 by the Department on the basis of the letter of the Company, it is alleged in the notice that their DT Division has wrongly transferred the Cenvat credit totally amounting to ₹ 25,36,49,274/- in the four SCNs during he period April-2005 to Sept-2009 without issuing any Central Excise invoices and without clearing the goods from their premises. In turn, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27.02.2003 issued to your vareli unit has been cancelled and you are allowed to operate under your jolwa factory registration NO. AACC8932CXM002 dated 25/09/2003. you are directed to maintain separate records of the production and clearance of the excisable goods at the respective plants i.e., factories but maintain a single consolidated Cenvat Account /PLA for the purpose of discharging the duties payable for the monthly clearances. Yours faithfully, (A.K. AGGARWAL) Deputy Commissioner Central Excise, Div-II, Surat-I. 13. Subsequently, by order dated 24.1.2005 the Deputy Commissioner of Central Excise, modified the earlier Order dated 28.7.2004 in so far as the facility of common PLA and cenvat account was withdrawn, but the common registration will continue. The relevant portions of Order dtd 24.1.2005 are reproduced below: Please refer to this office letter of even no. dtd. 28.07.2004 on the above subject wherein your request for clubbing of Central Excise Registration for Jolwa and Vareli units were allowed and you were directed to maintain separate account of the production and clearance of the excisable goods at the respective plants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not expressed any view of the eligibility of benefit of exemption Notification, which will be decided in separate proceeding. So, the Assessee again by letter dated 15.4.2005 requested the Deputy Commissioner of Central Excuse to issue separate R.C. for their three units in terms of the Order of the Commissioner (Appeals). It is significant to note that on the basis of the said letter dt.15.04.2005 of the Assessee, in the impugned order before us, the Adjudicating Authority held that on 15.4.2005, it would be considered as three separate units and they would maintain accounts PLA/cenvat Accounts. 16. Further, by Order in Appeal No VP/440/SRT-I/2005 dated 31.8.2005 the Commissioner (Appeals) decided the appeal against Order dated 24.1.2005, as stated above. As the Assessee already applied for separate R.C. for three units and by Order dated 12.4.2005, the Commissioner (Appeals) directed to issue separate R.C. for three units, in the present Order-in-appeal dated 31.8.2005, it was remanded the matter to the Adjudicating Authority for de-novo decision taking into consideration of earlier Order (Appeal) dated 21.4.2005. The relevant portions of Order (Appeal) dated 31.8.2005 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration to the assessee within a period of one month from the date of passing the order on 19.06.2009. 2. It stands contended before us that the original order passed on 02.05.2008 was challenged by the Revenue before Hon ble High Court along with a stay application. As such, the prayer in the application is to extend the period for implementation of the Tribunal s order till the matter is decided by the Hon ble High Court. 3. We find no merits in the above contention of the Revenue. The order following the appeal was passed on 02.05.2008 and it is more than one year, which has passed without implementation of the Tribunal s order. Admittedly, there is no stay of operation of the said order by the Hon ble High Court. In this scenario, Revenue was duty bound to carry out the implementation within a period of one month from today, as directed in the order dt.19.06.2009. We also note that the period of one month granted by the Tribunal on 19.06.2009 expired on or around 19.07.2009 whereas the present application for extension of time stands filed by the Revenue on 28.07.2009 i.e. after the expiry of the period of one month. As such, we do not appreciate the Revenue s inaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Hon ble Supreme Court, by order dated 15.3.2010 in Special Leave to Appeal (Civil) CC 3379/2010, dismissed the Leave Petition filed by the Revenue. 19. From the facts, as narrated above, it is clear that from 28.7.2004, as per order of the Deputy Commissioner of Central Excise, only the R.C. of the Assessee was in operation and the R.Cs. of other two units/Divisions were cancelled. The Assessee was discharging duties through their R.C. for clearance of goods. Further, by letter/order dated 11.3.2005, the Deputy Commissioner of Central Excise rejected the request of the Assessee for issue separate R.Cs. for the three divisions/units and the said Order was set aside by the Commissioner (Appeals) by Order (Appeals) dated 12.4.2005 and directed the Deputy commissioner to issue separate R.C. for three units/divisions. Moreover, by Order dated 24.1.2005, the Deputy Commissioner of Central Excise directed the Assessee for maintenance of separate PLA/Cenvat account for the different factories and the common R.C. will continue. By Order dated 31.8.2005, the Commissioner (Appeals) set aside the said Order dated 24.1,.2005 and remanded to the Deputy commissioner of Central Excise fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this issue, as it is observed that on 23.09.2009, three units would be considered as separate units. 20. Section 6 of the Central Excise Act 1944 provides any prescribed person, who is engaged in the production or manufacture or any process of production or manufacture of any specified goods included in the Schedule to the Central Excise Tariff Act 1985 shall get himself registered with the proper officer in such manner as may be prescribed. Rule 9 of the Central Excise Rules 2002 provides every person, who produces, manufactures, carries on trade etc., uses excisable goods, shall get registered. The registration shall be subject to such conditions, safeguard and procedures as may be specified by Notification by the Board. Notification No 35/2001-CE(NT) dtd 26.6.2001 as amended time to time, was issued in exercise of power conferred by Rule 9 of the Central Excise. The Central Board of Excise and Customs specified the conditions, safeguards and procedures for registration of a person under the said Rules and exemption from registration in specified cases. Para (2) of the Notification No 35/2001-CE (NT) (supra) provides if the person has more than one premises require registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (ie., the separate registration for the three units), consequently requiring the maintenance of separate PLA/Cenvat Account. So, unless the Deputy Commissioner would issue the separate registration for the three units as per direction of the Commissioner (Appeals), it cannot be considered as separate units. 22. The Adjudicating Authority observed that despite applying for separate registration on 28.2.2005 and on 15.4.2005 and after receipt of appellate order, the Assessee continued to keep the common record of the assessee and their DT Division. It is obvious that as soon as the Appellate Commissioner held in their favour they should have segregated their records related to three units especially those of DT division and the assessee. The findings of the Adjudicating Authority are totally contrary to the facts and law of the case. It is observed that unless the Assessee obtains a separate registration certificate from the Department, they cannot maintain separate records. They cannot file separate returns for the Assessee and the DT division. If the Order dtd 12.4.2005 was implemented and the separate registration would be issued as per the direction of the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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