TMI Blog2021 (8) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ider the factual state of affairs that as to whether the duty has actually been paid on the raw material and not whether duty was payable or not. Classification of the goods cannot be changed at the recipient s end, the issue is again settled and is no more res integra as is apparent from the decision of Hon ble Apex Court in the case of SARVESH REFRACTORIES (P) LTD. VERSUS COMMISSIONER OF C. EX. CUSTOMS [ 2007 (11) TMI 23 - SUPREME COURT] wherein it has been held that the classification by the manufacturer only has to prevail, the same cannot be altered at the buyers end. Once M/s. Shiv Industries has classified its PVC under Chapter Heading 3904 and admittedly Chapter heading 3904 is not merely for such PVC which is manufactured by scrap and is exempted from duty. The said classification cannot be denied by the appellant specially when the invoices received by him shows the payment of duty by his supplier. The question of adjudication is answered in negative holding that CENVAT Credit cannot be denied on the ground that the supplier was not liable to pay the duty on the goods supplied. Also it is observed that the finding of Commissioner (Appeals) about M/s. Shiv Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority for passing a speaking order after ascertaining whether PVC Filler Hollow supplied by suppliers other than M/s. Shiv Industries was reprocessed from the scrap or waste on which the duty was not required to be paid. 4. Consequent to the said order of remand, the Original Adjudicating Authority vide order dated 26.4.2019, has allowed the CENVAT Credit on import/ PVC Filler Hollow as was supplied to the appellant by M/s. 21st Century Packaging, M/s. Sunbeam Electrical Industries and M/s. Chaitanya Polymers, thus dropping the demand of ₹ 19,08,664/- holding the said amount of CENVAT Credit was available to the assessee. However, recovery of ₹ 4,67,165/- credit was still confirmed with interest and the penalty of same amount. An appeal was preferred against the said order which has been decided by the Order under challenge. Commissioner (Appeals) has allowed the CENVAT Credit for remaining other suppliers of the appellants except for the inputs supplied by M/s. Shiv Industries thereby confirming the reversal of CENVAT Credit to the extent of ₹ 2,93,035/-. 4.1 Still being aggrieved the appellant is before this Tribunal. 4.2 I have heard Shri Hema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the appellant that the issue about the applicability of Board s Circular No. 940/1/2011-CX dated 14.1.2011 as amended by Notification No. 12/12 CE, was also considered by the Bangalore Bench of this Tribunal in the case of Neuland Laboratories Ltd. vs. CCE, Hyderabad reported in [2015 (317) ELT 715 (Tri-Bang)] wherein it was held that when the Board s Circular which has been issued without taking into consideration the implications of the provision and that too instructions on the assessee cannot be applied blindly to arrive at a conclusion against the assessee. This finding have mentioned to have been confirmed by Hon ble High Court of Andhra Pradesh. It is mentioned that entire onus was on the Revenue to distinguish the manufacturing process of M/s. Shiv Industries from that of six other suppliers while allowing the CENVAT Credit with regard to the inputs received from six suppliers and denying the availment of CENVAT Credit on the inputs supplied by M/s. Shiv Industries. There is no evidence that M/s. Shiv Industries was manufacturing PVC Filler Hollow from the PVC waste and scrap. Order of Commissioner (Appeals) is not at all sustainable. Finally, it is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s / PVC Filler Hollow supplied by him are exempted from payment of duty in terms of Board Circular No. 940/1/2011-CX dated 14.1.2011 and Notification No. 12/12 CE, and the manufacturer thereof i.e. M/s. Shiv Industries has wrongfully paid the duty on the said product. Accordingly, the duty paid by M/s. Shiv Industries and availed as CENVAT Credit by the appellant stand denied to the appellant along with imposition of penalty of identical amount. 8. Thus the moot controversy to be adjudicated here is as to whether the CENVAT Credit availment can be denied to the assessee on the ground that the supplier of raw material was not liable to pay the duty on the goods supplied. Following facts apparent on record are opined to be relevant for the said adjudication. 1. The input supplied to the appellant falls under Chapter heading 3904 which covers polymers of vinyl chloride or other halogenated olefins, in primary forms and the Chapter Note do not specify that the goods covered under Chapter Heading 3904 are those which have been manufactured out of scrap and waste by the chapters specified in Notification No. 12/2012-CE. 2. The inputs have been received by the appellant against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availment of Cenvat credit of duty paid and not payable. The High Court observed that this distinction is very important and which indicates that what is to be taken into account is the factual state of affairs. Thereafter, the Hon ble High Court observed that once the duty has actually been paid on the raw material, the credit is admissible. In this case also, it is not the case of the Revenue that duty was not paid. Therefore, the decision of the Hon ble High Court of Madras is clearly applicable to the facts of this case. Even the amended Cenvat Credit Rules have similar provisions and provide for Cenvat credit of duty paid on inputs and therefore the appeal has to be allowed. 6. the fact that he is not required to determine the duty payable since what is provided in Rule 3 is that he shall be eligible to take credit of the duty paid. He is not required to determine the duty payable which is a part of assessment and is required to be done by the supplier of the goods. If the arguments advance by learned AR are accepted, the duty payable is also to be determined by the receiver of the goods and he has to determine that aspect first and then take credit, the assessee is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading 3904 is not merely for such PVC which is manufactured by scrap and is exempted from duty. The said classification cannot be denied by the appellant specially when the invoices received by him shows the payment of duty by his supplier. The Hon ble Apex Court in another decision of Commissioner of Central Excise Customs vs MDS Switchgear Ltd. has held that while considering availability of CENVAT Credit to manufacturer in respect of some inputs procured by him from another manufacturer, the quantum of duty already determined by the jurisdictional officers of supplier unit cannot be contested or challenged by officer in in charge of recipient unit specially when there is no evidence produced that the assessment of duty at the end of domestic supplier is reviewed and the duty paid by them is reviewed by them. In such a situation, in given facts and circumstances, there is no question arises for denying the CENVAT Credit to the appellant. Hon ble High Court at Punjab and Haryana has followed this decision in the case of Commissioner of Central Excise, Chandigarh vs Ranbaxy Labs Ltd. reported in [2006 (203) ELT 213 (P H)]. 10. In view of the observed admission and settled law ..... 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