TMI Blog2018 (4) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 10%) of the sale price of exempted final products as provided in Rule 6 of the CCR ibid - demand cannot sustain - appeal allowed - decided in favor of appellant. - E/191/2011 - Final Order No. 41011 / 2018 - Dated:- 28-3-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri M. Karthikeyan, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent ORDER Brief facts are that the appellant M/s. Hindustan Coca Cola Beverages are engaged in manufacture of dutiable goods namely aerated water and exempted goods namely Maaza Mango‟. They were clearing aerated water on payment of duty and Maaza Mango‟ without payment of duty availing exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted from payment of duty. Therefore, till 28.2.2001, the appellants were paying excise duty on both aerated water as well as fruit pulp based drinks. The appellant used durable and returnable glass bottles as a primary packing material for the final product produced. They also used durable and returnable plastic crates as the secondary packing material to store glass bottles. These glass bottles and crates are repeatedly used over a number of years for filling up the beverages manufactured and cleared by the appellant. The appellant was claiming CENVAT credit on virgin crates when they received in the factory premises. After first usage of virgin crates and after payment of duty on the final product on their removal from the factory, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crates. That in the appellant‟s own case pertaining to another unit, an identical issue was dealt and decided in favour of the assessee as reported in 2009 (236) ELT 195 which was upheld by the Hon‟ble High Court of Andhra Pradesh as reported in 2014 (309) ELT A132 (AP). 3. The ld. counsel also argued on the ground of limitation. He submitted that the audit team conducted audit and raised audit objection dated 19.5.2003. The said letter inter alia observed that the appellant ought to have taken proportionate credit on crates used commonly in the packing of aerated water as well as exempted goods. The letter quantified the demand at ₹ 15,65,764/- being 15% of the credit taken during April 2001 to March 2003 allegedly att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r secondary packing of aerated goods as well as Maaza till 28.02.2001. plastic creates are durable in nature and hence are capable of being repeatedly used in the packing of finished goods for a considerable period which is estimated to be around eight years. CENVAT credit is claimed only on the virgin crates when they are received from the manufacturer thereof. The Notice submits that after the first usage of virgin crates and after payment of duty on the final product on their removal from the factory premises, all the underlying conditions as stated under the Cenvat Rules were fulfilled by the Noticee to justify their claim of CENVAT Credit. There is no additional condition or provision in the Cenvat Rules to be additionally complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted final products manufactured and cleared by the appellants. There is no dispute that the appellants had not taken credit of duty paid on 22% of the crates which is the percentage of Slice out of the assessee s total production. It is also not in dispute that the appellants had not used new crates for packing Slice in the material period. Since the appellants used inputs in the manufacture of exempted and dutiable final products, unless they had followed the provisions of Rule 6 of CCR, 2002, they were required to pay 8% (10% from 10-9-2004) of the sale price of the exempted final product (slice) cleared during the material period. The appellants have argued that when the used crates received back in the factory from distributors of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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