9911796707
TMI Blog2023 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944, the factual matrix is uncomplicated. 2. M/s KSH International Pvt Ltd, a manufacturer of insulated 'copper/aluminium' conductors in which 'copper' is an essential ingredient, had been clearing final product, in both the domestic market as well as for exports towards fulfilment of obligation under the 'advance licence/authorization scheme' of Foreign Trade Policy (FTP) enabling import of the primary ingredient, viz., copper, without payment of duty. The respondent, instead of sourcing copper from abroad had, in terms of the scheme in the Foreign Trade Policy (FTP), obtained the same from M/s Hindalco Industries Ltd and M/s Sterlite Industries Ltd between October 2004 and March 2009 on payment of duty of Rs. 5,26,47,414/- and upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Gujarat was dismissed not on merit but merely on threshold monetary value and that an identical issue, decided by the Tribunal in Oleofine Organics (India) Pvt Ltd v. Commissioner of Central Excise, Thane-I [2014 (299) ELT 91 (Tri.-Mumbai)=2013-TIOL-896-CESTAT-MUM]], was pending in appeal of Revenue before the Hon'ble High Court of Bombay. 5. It is contended by the Learned Counsel for the respondent that the dispute in re Oleofine Organics India Pvt Ltd had found resolution before the Hon'ble High Court of Bombay in Commissioner of Central Excise & Customs, Thane-I v. Oleofine Organics India Pvt Ltd by its order dated 13th October 2024 disposing off Central Excise Appeal no. 297 of 2013 thus: '3. Upon careful perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of credit does not hold water. We have asked the ld. AR to show any specific provisions under Central Excise law requiring the appellants to clear the goods in the said situation under Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001 only. We have also seen the Notification and the connected rules. These rules do not require the appellants to necessarily clear the goods duty free by following the procedure under Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001. We also note that overall there is no loss to the Revenue as the credit is being taken of the duty paid. If the appellants could have followed the Notification No. 44/2001-C.E. (N.T.), dated 26-6-2001, no duty would have been paid by the suppliers and appellants would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 2002 also affords option to a manufacturer to remove goods either on payment of duty or, subject to such procedure incorporated in the approval by the competent authority, without payment of duty. It is also settled law that it is not open to the central excise authorities having jurisdiction over the buyer to determine leviability to duty of a seller in another jurisdiction. On this very issue, in relation to the very same notification, the Tribunal in Shree Shyam Filaments v. Commissioner of Central Excise & Service Tax, Jaipur - I [2014 (310) ELT 801 (Tri.-Del.)] had held that '7. The appellant had been issued Advance Authorization and since they did not use those Advance Authorization for duty free import of inputs, they got the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the domestic suppliers had been reviewed and the duty paid by them has been refunded to them. When this is so, there is no question of denying the Cenvat credit to the appellant. In view of this, the impugned order is not sustainable. The same is set aside. The appeal as well as stay application are allowed.' 9. The duty having been discharged by manufacturers of copper who had supplied 'inputs to the respondent, there is no ground for denial of eligibility for CENVAT credit. Furthermore, the primary contention in the appeal of Revenue is that on identical matter was pending resolution, in their appeal, before the Hon'ble High Court of Bombay in re Oleofine Organics India Pvt Ltd. With the disposal of that appeal, discarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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