9911796707
TMI Blog2021 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Credit under Cenvat Credit Rules, 2004 (CCR 2004). During the course of audit of records of the appellant for the period from April 2015 to March, 2017, Department observed that Central Excise Duty of Rs. 3,08,966/- has not been paid by the appellant despite the appellant has transferred machine to RSPL Ltd., Patna Unit. Appellant was also alleged to have failed to pay an amount of Rs. 47,094/- on clearance of the exempted/ non-excisable goods from the factory, apparently the left over packing material. The appellant was also alleged to have wrongly availed the Cenvat Credit of Rs. 7827.77 on ineligible input services. Accordingly, a Show Cause Notice bearing No.410 dated 19.04.2018 was served upon the appellant proposing the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Department. 4. With respect to another issue of the payment of amount on clearance of non-excisable waste i.e. left over packing materials, learned Counsel has impressed upon that the left over packing material is out of the scope of Rule 6 (3) (1) of CCR 2004. Circular No.721/37/2003 - CX dated 6th June, 2003 has been impressed upon, which stand amended by Notification No.6/2015-CE dated 1st March, 2015. It is submitted that this issue is also no more res-integra as stands decided by Hon'ble Apex Court in the case of M/s. West Cost Industrial Gases Ltd. vs.CCE - 2003 (04) TMI 110. It is based upon this judgement itself that the aforesaid circular No.721 was issued by Central Board of Excise and Customs. The issue with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter hearing the parties and going though the record of the appeal I am of the considered view as follows;- Three issues are involved herein are as mentioned below:- A. Payment of duty on stock transfer of capital goods i.e. Old machine cleared to sister unit after their use. B. Payment of amount on clearance of non-excisable waste and scrap such as wooden pallets, rotten gunny bags, broken packing material etc. from the factory. C. Wrong availment of cenvat credit on ineligible input services. 8. Apparently and admittedly the appellant M/s. RSPL Ltd is a company having several sister units. There is no denial of department to the fact that all units share one common PAN. As far as first issue is concerned, admittedly appellant uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine between two sister units is not a trading activity. It being merely a stock transfer of inputs interse sister units which cannot be categorized as sale. It has also been held in the said decision that for the said reasons even Rule 6 (3) (b) of CCR 2004 is not applicable to such a transfer. From the invoice, it is also observed that the requirement of Rule 3 (5A) of CCR 2004 has fully been met by the appellant though the Department has alleged the said mention in the invoice as a mere book-entry but apparently and admittedly there is no evidence on record to falsify the said compliance for it being a mere book entry. 10. Coming to the second issue, appellant has cleared leftovers of the packing material for the applicability of Rule 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Alwar - Final Order No.51801/2019 in Appeal No.E/50526/2019 (SM) 11. Though Adjudicating authority below in the order has held that packing material cleared by the appellant falls under the exempted goods for the purpose of Rule 6 but the authority is opined to have failed to appreciate that the exempted goods have to be the manufactured goods of the appellant. Admittedly, it is not the case. The finding of adjudicating authority below on this issue is also not sustainable. 12. Now coming to the issue of wrong availment of cenvat credit on ineligible input services, since there has already been a decision in favour of the appellant on this issue in Final Order number A/50546-50547 of 5th April, 2018, the issue stands no more res-integra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice, I find that these issues also stand already decided that too in case of the appellant themselves vide the same final order No.50546-50547 dated 5th April, 2018. I do not find any reason from the facts and circumstances of present appeal to differ from these findings. The ground taken by the adjudicating authority below to deny the said admissibility is that the CA Certificate dated 19th November, 2014 is an old Certificate and as such has no relevance. But I am of the opinion that once the issue stands settled by the Tribunal for the same appellant in the same facts and circumstances, there remains no burden of the appellant to produce CA Certificate either for the pre or the post period of the demand which stands already decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
