TMI Blog2022 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel for the Appellants that since the inputs were originally sent under Rule 4(5)(a) procedure to job workers, and since finally duty stands discharged by the Principal at Daman on finished goods, evenif it is cleared directly from job workers to eventual customers, neither Cenvat Credit requires to be denied to the Appellant at Daman nor duty demand can be raised on the job worker at Vadodara, even though they are the actual manufacturers, since the duty admittedly stands paid at Daman, and even collected by revenue authorities as such. The present case is not one where the Appellant claimed the benefit of Notification No.214/86-CE, but instead, one where job work procedure under the Cenvat Credit Rules, 2004 was adopted. Rule 4(6) thereof has a specific provision to permit the finished goods to be cleared directly from job worker s premises where the Principal pays duty thereon, which is done in the present case. As regards not seeking permission under Rule 4(6), the impugned order itself at Para 10.6 suggests that had such permission been sought, there would not have been any demand as such. Thus, not seeking such permission is merely a procedural lapse and there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B DMN-EXCUS-000-COM-008-16-17 dt. 06.06.16 ShriTanmay Patel (Director) Rs. 50,00,000/- (Penalty) M/s. Amod Stamping P. Ltd.,Vadodara:-SCN F. No. DGCEI/AZU/36-327/2012-13 dt. 27.02.2014 Period Invoved: 2008-2012 Sr. No Appeal No OIO No Appellant Duty demand/penalty 5 E/13913/2014-DB VAD-EXCUS-001-COM-20-14-15 dt. 30.09.14 Amod Stamping Pvt. Ltd (Vadodara) Rs. 3,81,95,652/- alongwith Interest and Penalty of Rs. 3,81,95,652/-. 6 E/13914/2014-DB VAD-EXCUS-001-COM-20-14-15 dt.30.09.14 Amod Stamping Pvt. Ltd (Daman) Rs. 25,00,000/- (Penalty) 7 E/13990/2014-DB VAD-EXCUS-001-COM-20-14-15 dt. 30.09.14 Tanmay S Patel (Director) Rs. 25,00,000/- (Penalty) 8 E/13991/2014-DB VAD-EXCUS-001-COM-20-14-15 dt. 30.09.14 Malhotra Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Daman unit, on the grounds that it was not actually returned back to Daman, but instead, cleared directly to Customers from Vadodara itself. 02. Shri Saurabh Dixit, Learned Counsel appearing for the Appellants argued that admittedly, the goods were sent by Daman unit to Vadodara for job work, under job work procedure. It is his claim that while processed goods were in fact returned back from Vadodara to Daman and cleared from Daman to various customers on duty payment, evenif for the sake of argument, it is believed that the goods were in fact cleared from Vadodara directly to customers, even then since admittedly the duty was paid at Daman on sale price to customers, neither Cenvat Credit can be denied to Daman unit nor Central Excise duty can be demanded from Vadodara unit once again. 2.1 It was further argued that the Appellant has already explained that considering distance between Vadodara and Daman, and given the fact that the Appellant cannot control vehicle numbers mentioned on LR by the transporters, merely because handful of vehicles shown to have transported goods from Vadodara to Daman for return of processed goods, if were found to be transporting goods elsewh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not enter or leave Daman at all. He relied upon the decisions in the cases of M/s. Gujarat victory Forgings P. Ltd. 2019 (7) TMI 5 - CESTAT AHMEDABAD as also in the cases of Taha Wires P. Ltd. 2022 (2) TMI 544 - CESTAT AHMEDABAD and 2019 (1) TMI 1956 - CESTAT AHMEDABAD to argue that records from check posts are not authentic to conclude whether goods were transported or otherwise. 2.6 He submitted that the impugned order itself admits at Para 10.6 thereof that had the Appellant opted for the procedure under Rule 4(6) of Cenvat Credit Rules 2004 by taking necessary permission, there would not be any demand. He relied upon the following decisions in support of the contention that since Daman unit had already paid duty on finished goods, it cannot be demanded from Vadodara unit at all: THERMAX BABCOCK WILCOX LTD. 2018 (364) E.L.T. 945 (TRI. LB)- PARA 7.5 TO 7.16 DHANA SINGH SYNTHETICS P. LTD. 2015 (326) E.L.T. 609 (TRI. AHMD) COMMISSIONER V. DHANA SINGH SYNTHETICS PVT. LTD. - 2016 (337) E.L.T. A140 (S.C.) SANGHI INDUSTRIES LTD. 2014(302) ELT 564 (TRI-AHMD) PARA 12 AND 13 HINDUSTAN LEVER LTD. 2006 (206) E.L.T. 848 (TRI. BANG) VANDANA DYEING P. LTD. 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Daman is questionable, and since the transport documents for clearance of finished goods from Daman to customers too is also doubtful, the finished goods must have been cleared from Vadodara to the customers directly, and since Vadodara unit is the manufacturer, the duty demand stands raised on them. Admittedly, no similar duty demand is raised on M/s. Amod Steel Processors (another job worker) meaning thereby that the inputs processed at their end are not sent to customers, but appears to have been returned back to Daman unit. It is also admitted that Daman unit had paid duty at appropriate rate on the entire quantity of finished goods shown to have been sent from Daman to the eventual customers, who also received such goods. 4.2 We find that admittedly the various customers have received the processed goods and also certified to this effect and at the same time, no cogent evidence is adduced by revenue to show that such goods in fact physically travelled from Vadodara to customers premises, instead of from Daman to customer premises, as claimed by the Appellant. In any case, we find that the entire controversy can be decided on legal basis, without entering into the chequered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the principal manufacturer. This rule is applicable only when principal manufacturer discharges the Excise duty on finished goods which is manufactured by the job worker. This Rule does not allow the job worker to remove finished goods without payment of duty. Such a situation arises in case where the Cenvated inputs are sent for job work and finished goods manufactured therefrom is cleared from the job work premises. It is a facility to avoid the return of the finished goods to the factory of principal manufacturer and also to save the logistic cost. Thus Rule 4(5) and Rule 4(6) have been issued under Cenvat Credit Rules, 2001 and 2002 Rules as the conditions under which Cenvat credit can be allowed to a principal manufacturer and it is not a statutory provision to grant exemption from payment of duty to the manufacturer and in the present case, the job worker. 7.8 In the case under reference, the facts of non-payment of duty on final products by the principal manufacturer is not disputed. The goods received from the job worker were not used in the manufacture of dutiable final products but in goods on which no duty was paid. In such case when the principal manufacturer di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the judgment of Hon ble Apex Court in case of M/s. International Auto Ltd. v. CCE, Bihar - 2005 (183) E.L.T. 293 (S.C.). In the said case the dispute related to valuation of goods for the purpose of levy of duty at the job worker s end. The controversy was not related to liability of duty of job worker. It is undisputed in the present case that the principal manufacturer was not paying duty on removal of final products and had also not opted to avail the benefit of Notification No. 214/86-C.E. Hence the liability is on the manufacturer of intermediate product, i.e. job worker in the present case. 7.15 The reliance placed upon the Circular No. 306/22/97/-CX, dated 20-3-1997 is also misplaced since the circular was with reference to the situation upon eligibility of the job worker to claim credit where no duty was paid by them. However the facts of the present case are different as it deals with the situation as to who should be liable to pay duty when the principal manufacturer is not discharging duty either on job work goods or on final products in which such job work goods are consumed. In such case the responsibility lies to the job worker who is the ultimate manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
