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2016 (4) TMI 493 - CESTAT KOLKATA

2016 (4) TMI 493 - CESTAT KOLKATA - 2016 (340) E.L.T. 610 (Tri. - Kolkata) - Rule 6(3) of the Cenvat Credit Rules, 2004(CCR) - Whether the appellant is required to pay 10% amount when common inputs are used in the manufacture of finished goods which are exempted as well as dutiable - Manufacture of Garden Rakes, Forks, Box Hinges fully exempted as per Notification No.5/2006-CE dated 01.03.2006 unconditionally. - Held that:- as per Rule 6(1)ibid, no credit shall be admissible in relation to m .....

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inputs are used in the manufacture of dutiable and exempted goods then appellant is required to pay an amount equivalent to 10% on the value of exempted goods as demanded by the Department. - So far as the provisions contained in Rule 6(6) of Cenvat Credit Rules, 2004 are concerned, the case of the appellant is that even exempted goods are excisable goods, therefore, amount under Rule 6(3) cannot be denied if the goods are cleared without payment of duty. However, it is observed that as per .....

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ing with the same. - Decided against the appellant - Appeal No. EA-998/11 - Order No. FO/A/75275/2016 - Dated:- 12-4-2016 - Shri H. K. Thakur, Member ( Technical ) For the Petitioner : Shri N.K.Chowdhury, Advocate For the Respondent : Shri S. Mukhopadhyay, Supdt. (AR) ORDER Per Shri H. K. Thakur 1. This Appeal has been filed by the Appellant with respect to Order-in-Appeal No.118/KOL-II/2011 dated 15.09.2011 passed by the Commissioner(Appeals) of Central Excise, Kolkata-II as First Appellate Aut .....

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exported the same under claim of rebate. That department did not take any objection to the payment of duty and claim of rebate by the Appellant. That subsequently it was observed by the department that the goods manufactured by the Appellant were fully exempted and chargeable to Nil rate of duty under Notification No.5/2006-CE dated 01.03.2006. The department demanded 10% amount under Rule 6(3) of the Cenvat Credit Rules, 2004 for using common inputs for manufacturing excisable goods and exempt .....

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e goods removed without payment of duty for export. It is his case that exempted goods exported are also excisable goods therefore Cenvat Credit cannot be denied. The Ld.Advocate mainly relied upon the case of Bombay High Court in the case of Repro India Ltd. v. UOI [2009 (235) ELT 614(Bom.)]. Ld.Advocate further made the Bench go through para 10 of case law Commissioner of C.Ex., Ahmedabad-III v. Gujarat Ambuja Exports Ltd. [2014 (311) ELT 718(Tri.-Ahmd.)] where it is held that Cenvat Credit un .....

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was held admissible for refund under Rule 5 of Cenvat Credit Rules, 2004, when the goods were exported under bond without payment of duty. It was his case that the relied upon case laws are thus not applicable to the facts of the present case. It was strongly argued by the Ld.AR that suo motu payment of duty does not make the goods dutiable and as per the provisions contained in Section 5A of the Central Excise Act, 1944 an assessee has no option but to avail of an exemption notification. The L .....

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fication No.5/2006-CE dated 01.03.2006 unconditionally. However, Appellant preferred to pay duty and claim rebate after export of the goods. Reliance placed by the Appellant on several case laws are mis-placed because in all the case laws relied upon by the Appellant, the export was made under bond and accordingly Cenvat Credit/rebate was held to be admissible. In the case of Repro India Ltd. vs. UOI (supra) relied upon by the Appellant it was observed by Bombay High Court that Appellant can exp .....

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