TMI Blog2019 (10) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. In our view when the Chewing tobacco rules were made applicable to the Zarda Scented Tobacco, it explicitly meant that whatever duty liability and manner of levy alongwith facility of credit was applicable on chewing tobacco was also applicable to Zarda scented tobacco. Pertinently when the legislation wanted to keep Zarda scented tobacco in same category as chewing tobacco, it also meant that the cenvat credit as available to chewing tobacco would also be available to Zarda scented Tobacco. Extended period of limitation - HELD THAT:- There is no reason to allege malafide intention/ suppression or deliberate action on the part of Appellant to avail alleged ineligible cenvat credit. From the facts it is apparent that the Appellant were under bonafide belief that being their goods at par with the chewing tobacco, the cenvat credit is available to them. They even made representation with the department and ultimately the goods become eligible for cenvat credit. Therefore there is no reason to hold the Appellant responsible of any deliberate act to evade duty or avail ineligible cenvat credit. Penalty - HELD THAT:- Even if it was assumed that the Appellant are not eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner for amending the Rule 16 of Chewing Tobacco rules, 2010 for allowing the cenvat credit of duty paid on Zarda scented tobacco in bulk used in manufacture of Zarda Scented Tobacco pouches. The representation was forwarded by the Commissioner to the Chief Commissioner who finding the representation to be correct forwarded it to the Board for allowing credit. The Chewing Tobacco Rules were amended by Notification No. 10/2012 CE (NT) dt. 17.03.2012 allowing the credit on Zarda scented Tobacco in Bulk.. Meanwhile the Appellant came to be issued five show cause notices wherein Cenvat demand of ₹ 68,55,021/- was made; also central excise duty paid by utilising the said credit was demanded ; penalty was sought to be imposed. Vide Order-in-original No.11/COMMR/AKG/AHD-II/2012 DT. 17.07.2012 passed by Commissioner, Central Excise, Ahmedabad II, a demand of ₹ 53,73,727/- was confirmed against Appellant by allowing cenvat credit. The other four show cause notices also came to be decided by the Deputy Commissioner vide Order No. MP/10/OA/2012 dt. 30.03.2012, MP/11/OA/2012 dt. 30.03.2012, MP/12/OA/2012 dt. 30.03.2012, MP/13/OA/2012 dt. 30.03.2012 the proposals as made in show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pouch packed Zarda Scented Tobacco. He relies upon the Apex Court judgment in case of Govt. Of India Vs. Indian Tobacco Association 2005 (187) ELT 162 (SC), WPIL ltd. 2005 (181) ELT 359 (SC), Ralson India Ltd. 2015 (319) ELT 234 (SC), Sujana Metal products Ltd. 2011 (273) ELT 112 (TRI), Forsoc Chemicals (India) Pvt. Ltd 2015 (318) ELT 240 (KAR), Lothe Power Gears (P) Ltd 2017 (346) ELT 347 (KAR), Development Engineers Pvt. Ltd. 2016 (339) ELT 560 (P H). Steel Authority of India 2013 (297) ELT 166 (CHATTISGARH.), Indo Alusys industries Ltd. 2018 (360) ELT 96 (TRI), Ultra Tech Cement Ltd. 2014 (310) ELT 170. 3. He also submits that on the one hand the demand of cenvat credit has been made and on the other hand central excise duty has also been demanded, thus making the Appellant to pay the amount twice. The Appellant had taken the total CENVAT Credit amounting to ₹ 53,73,730/- during May to August 2010, out of which cenvat amounting to ₹ 43,36,591/- has been used towards payment of duty. Whereas the Appellant has been made to pay both the amounts which is wrong. The Appellants can be asked only to pay back the amount taken by them wrongly. They have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to Zarda scented tobacco. Pertinently when the legislation wanted to keep Zarda scented tobacco in same category as chewing tobacco, it also meant that the cenvat credit as available to chewing tobacco would also be available to Zarda scented Tobacco. It was only a minor error that Rule 16 left to be amended to include Zarda scented tobacco which was later amended on the representation made by the Appellant to give explicit benefit to Zarda scented Tobacco. Even otherwise also the Zarda scented tobacco is also a tobacco and for same use and the credit was available to the Appellant. We find that in such case, it has to be construed that the substitution of Rule 16 was meant to be retrospective. In case of Govt. of India Vs. Indian Tobacco Association 2005 (187) ELT 162 (SC), the Apex Court held as under : 27. There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed [See Attorney General v. Pougette (1816) 2 Price 381 : 146 ER 130]. 28. The doctrine of fairness also i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of SHA Chunnilal Sohanraj v. T. Gurushantappa reported in 1972 (1) MYS. L.J. PAGE 327 DB has held as under : When an amending Act has stated that the old sub-section has been substituted by the new sub-section the inference is that the Legislature intended that the substituted provision should be deemed to have been part of the Act from the very inception. 12 . Recently, the Hon ble Apex Court in the case of Government of India v. Indian Tobacco Association reported in 2005 (187) E.L.T. PAGE 162 (S.C.), while dealing with the exemption notification which was issued by way of substitution., held as under : 15. The word substitute ordinarily would mean to put (one) in place of another , or to replace . In Black s Law Dictionary, Fifth Edition, at page 1281, the word substitute has been defined to mean To put in the place of another person or thing or to exchange . In Collins English Dictionary, the word substitute has been defined to mean to serve or cause to serve in place of another person or thing; to replace (an atom or group in a molecule) with (another atom or group) ; or a person or thing that serves i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read and construed as if the altered words had been written into the Rules of 2004 with pen and ink and the words to a developer of the SEZ for their authorized operation was there from the inception. This is the understanding of the Government as is also clear from the circular issued by the C.B.E. C. bearing No. 29/2006-Cus., dated 27-12-2006 wherein clause 4 reads as under :- 4. In the light of the aforesaid provisions, with effect from 14-3-2006, Chapter XA of the Customs Act, 1962, the SEZ Rules, 2003, the SEZ (Customs Procedure) Regulations, 2003, and the exemption Notification No. 58/2003-C.E., dated 22-7-2003 regarding the supply of goods to SEZ units SEZ developers have become redundant. Consequently the supplies from DTA to a SEZ unit, or to SEZ developers for their authorized operations inside a SEZ notified under sub-section (1) of Section 4 of the Act, may be treated as in the nature of exports. 14 . Therefore, it is clear, the said amendment has to be construed as retrospective in nature and the benefit of Rule 6(6)(i) as amended in 2008 has to be extended to the goods cleared to a developer of a Special Economic Zone for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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