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M/s. Dharampal Satyapal Ltd. Versus Commr. of Central Excise, Shillong

2016 (5) TMI 1049 - CESTAT KOLKATA

Eligibility of Cenvat credit of NCCD - paid on input panmasala received by the appellant from the suppliers who availed the benefit of Notification No. 27/2001-CE dated-11/5/2001 - Rule 3(1)(v) of the CENVAT Credit Rules - Held that:- the contention raised by the appellant, that NCCD duty credit utilized by debiting the CENVAT Credit account, cannot be denied for units not availing area based exemption, is acceptable as these amounts are not hit by the CENVAT Credit Rules. The amount of such NCC .....

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1 return copies for the month of March, 2002, March, 2003 and March, 2004 that appellant has indicated the NCCD CENVAT Credit taken by the appellant. Appellant has also given a list of all the input materials and their registration numbers. It is also observed from the covering letters filing ER-1 returns that even photo copies of Cenvatable invoices were also submitted to the department by the appellant. Therefore, five year’s extended period of demand cannot be invoked against the appellant. H .....

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and provisions of CENVAT Credit Rules were known to the department also. Periodical audits of the appellant’s unit were also done by the Internal Audit parties of the department. If department could not raise doubts about the admissibility of credit then Appellant cannot be held responsible for taking a deliberately wrong credit for imposing penalty. Accordingly, it is held that penalty under Rule 15 of the CENVAT Credit Rules, 2004 cannot be imposed and is set aside. - Appeal disposed of - Exci .....

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earing for the appellant and through written submissions argued that appellants are the manufacturer of Gutka classifiable under Chapter 24 of the schedule to Central Excise Tariff Act, 1985. That officers of Central Excise, Guwahati during a visit on 16/3/2006 observed that appellant is taking CENVAT credit of National calamity Contingent Duty (NCCD) paid on panmasala which was received from other units as input on which NCCD was paid. That it is the case of the Revenue that appellant is not el .....

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made the bench go through the provision of Rule 3 (1) (V) of the CENVAT Credit Rules 2001/2002 or 2004 to argue that credit of NCCD paid on the inputs is admissible. That provisions contained in Rule-10 of CENVAT Credit Rules 2001/2002 or Rule 12 of CENVAT Credit Rules, 2004 have been made as an abundant caution and cannot take away the credit admissibility as per Rule 3 (1) (V) of the CENVAT Credit Rules.That Notification No. 27/2001-CE has to be considered as an integrated part of incentives g .....

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resent facts. That SLP filed by the Revenue against this order has been dismissed by Apex Court as per citation 2010 (256) ELT a 161 (S.C.). That as per the following case laws the duty is deemed to be paid even if subsequently refunded under an area based exemption notification:- (i) CCE, Jallandhar Vs. Kay Kay Industries [[2013 (295) E.L.T. 177 (S.C.) (II) CCE, Chennai-I Vs. CEGAT, Chennai [2006 (202) ELT 753 (Mad.)] 2.2 That as per case law CCE, Mumbai Vs. Indorama Synthetics (I) Ltd. [2014 ( .....

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ken and also the address/registration number of the Panmasala suppliers. Learned Advocate made the bench go through illustrative copies of such returns on page 72,75 & 76 of the appeal. That penalty is not invokable as extended period is not invokable and also due to the fact that it was a case of genuine legal interpretation. 2.4 That credit of NCCD utilized by debiting NCCD credit from RG-23 of the CENVAT credit of the appellant cannot be denied which is not refunded under area based exemp .....

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tification No. 32/99-CE & 33/99-ce have been made applicable to implement Notification No. 27/2001-CE. (iii) That Notification No. 27/2001-CE dated 11/5/2001 does not find mention in Rule 10 and Rule 12 of the CENVAT Credit Rules 2001/2002 or CENVAT Credit Rules 2004 which only make CENVAT credit admissible even if the end products stand exempted. (iv) That there is nothing in the CENVAT Credit that Rule 3 of the CENVAT Credit will prevail over Rules 10 or Rule 12 of the CENVAT Credit Rules .....

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specific mention in these Rules. (vii) That the word Notwithstanding used in the opening paragraph of Rule 10 or Rule 12 of the CENVAT Credit Rules will mean that special provision of Rule 10 or Rule 12 will prevail over general provisions of Rule 3 or Rule 10 of CENVAT Credit Rules. Learned Special Counsel relied upon Gujarat High Court s decision in the case of Adani Power Ltd. Vs. U.O.I. [2015 (330) ELT 883 (Guj.)] 4) Heard both sides and perused the case records. The issue involved in the pr .....

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1-CE is also issued to extend area based benefit to the manufacturer. Appellant has claimed that CENVAT Credit of NCCD is admissible to them as per the provisions of Rule 3 (1) (V) of the CENVAT Credit Rules.It is also observed that as per Rule 6 of the CENVAT Credit Rules, no credit of the duty on inputs is admissible if the end product stands exempted. Under area based exempted notification No. 32/99-CE and 33/99-CE, both dated 8/7/1999, as well as Notification No. 27/2001-CE dated-11/5/2001 w .....

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lant that CENVAT credit of NCCD is admissible as per Rule 3 (1) (v) of CENVAT Credit Rules is not absolute and cannot be appreciated. Rule 3 (1) (v) cannot be read in isolation when other Rules like Rule 6 of CENVAT Credit Rules are also existing in the scheme of taking CENVAT credit. Admissibility of CENVAT Credit under Rule 3 of the CENVAT credit is also subject to fulfillment of other conditions specified elsewhere in the CENVAT Credit Rules. Rule 10 of CENVAT Credit Rules 2001/2002 (CCR 01/0 .....

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on, Kutch district of Gujarat, State of Jammu and Kashmir and State of Sikkim-Notwithstanding anything contained in these rules, where a manufacturer has cleared any inputs or capital goods, in terms of notifications of the Government of India in the Ministry of Finance(Department of Revenue) No. 32/99-Central Excise, dated the 8th July, 1999 or No. 33/99-Central Excise, dated the 8th July, 1999 [G.S.R. 509 (E), dated the 8th July, 1999] or No. 39/2001-Central Excise, DATED THE 31ST July, 2001 [ .....

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e, dated the 25th June, 2003 [G.S.R. 513 ( E ), dated the 25th June, 2003] or 71/2003-Central Excise, dated the 9th September, 2003 [ G.S.R. 717 ( E ), dated the 9th September, 2003, the CENVAT credit on such inputs or capital goods shall be admissible as if no portion of the duty paid on such inputs or capital goods was exempted under any of the said notifications. 4.2 A plain reading of the above Rules reveal that area based exemptions 32/99-CE & 33/99-CE, both dated 8/7/1999, are mentione .....

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cified areas for the purpose of taking CENVAT Credit. The argument taken by the appellant, that these provisions are made as an abundant caution or are clarificatory and has no relevance, is thus required to be rejected. On the contrary the opening phrase of this Rule 12 containing the words Notwithstanding anything contained in these Rules has to be interpreted to mean that in spite of the provisions contained in Rule 3 & Rule 6 of the CENVAT Credit Rules, credit of whole of duty paid thr .....

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(supra) and others are not relevant as none of these case laws are with respect to admissibility of CENVAT credit under special provisions contained in Rule 10 and Rule 12 of CCR 01/02 and CCR 04 respectively. In view of the above on merit, CENVAT credit of NCCD, refunded under area based exemption No. 27/2000-CE, is not admissible to the appellant. 6. However, the contention raised by the appellant, that NCCD duty credit utilized by debiting the CENVAT Credit account, cannot be denied for unit .....

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