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TMI Blog2023 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 2 the Commissioner (Appeals) remanded the matter back to the original adjudicating authority for re-adjudication. 2. The brief facts of the two appeals before us are that the appellant is engaged in the manufacture of Bitumen Emulsion and preparation of Polymer Modified Bitumen (PMB) falling under Chapter 27 of the Central Excise Tariff Act, 1985. The records of the appellant were scrutinised by Anti Evasion Branch of Central Excise, Jaipur-II Commissionerate. During the investigation, it was alleged that the appellant has availed excess Cenvat credit as per the provisions of Rule 6 of Cenvat Credit Rules, 2004. The appellant reversed the said credit amounting to Rs. 2,67,06,656/- under protest. Subsequently, the appellants were issued show cause notice dated 01.10.2013 demanding reversal of credit of Rs. 7,14,73,212/- under Rule 6 of CCR, 2004 for the period September 2012 to June 2013. The demand raised by the said show cause notice was confirmed vide order-in-original dated 09.10.2014 against which the appellant filed an appeal before the Tribunal. The said Appeal No. E/50367/2015 was disposed vide order dated 27.10.2017, vide which the Tribunal remanded the matter for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A120 (SC) has held that for the period September 2012 to November 2012 (inadvertently mentioned November 2013), it is on record that the appellant has paid the duty on the product PMB in spite of the fact that the Apex has held that it has not been manufactured. It is settled position of law that once duty has been paid it is to be considered as reversal of Cenvat credit availed. Tribunal had merely reproduced the relevant extract of Creative Enterprises (supra) and Tribunal has nowhere stated that Commissioner has to verify that the appellant had availed lesser Cenvat credit than duty paid on exempted product. Therefore, it is evident from the above that Tribunal has merely remanded the matter to the adjudicating authority only to verify whether the appellant had paid duty on the PMB goods removed during the period September 2012 - November 2012. The Commissioner's order that the duty paid was higher than the credit taken and there is no accumulation of credit due to is beyond the direction of Tribunal since the Tribunal had not remanded the matter to verify whether the appellant had availed lesser Cenvat credit than the duty paid on the exempted product. Therefore, it is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only engaged in manufacturing of Bitumen Emulsion and had cleared these goods by preparing excise invoice and on payment of duty, as is evident from ER-I returns filed for the said period. The Ld Counsel contended that the credit is required to be reversed only when the said credit is used in processing of PMB. In this case, the input services have not been utilized in the manufacture of PMB cleared during September 12 to June 2013 since they were input services received during the period April 2008 to March 2011. Therefore, he submitted that credit of Rs. 1,11,99,084/- on input services is not required to be reversed. These input services were used in manufacture of Bitumen Emulsion on which duty is paid by the appellant. 6.3. In view of the above submission, the learned Counsel contended that eligibility of the credit shall be determined as on the date when the services were received and the fact that it is distributed subsequently is not relevant. Thus, the credit availed on input services during month of September 2012 is to be excluded for the purpose of computing the amount of credit to be reversed. He relied on the judgment of M/s Surya Food and Agro Ltd. - 2020-TIOL-1004- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the credit wrongly. The Cenvat credit was legitimately available to the appellant. The credit was also not utilized for any other purpose not permitted under Rule 3(4) of Cenvat Credit Rules. In view of this, he submitted that Rule 15(1) is not liable to be attracted. 8. The Learned Authorised Representative reiterated the findings of the Commissioner in the impugned order. He contended that the appellant had availed higher CENVAT credit as compared to the duty paid in the corresponding period. He submitted that the appellant cannot be allowed to kill it credit for a product which is not excisable and does not amount to manufacture. Therefore, the Commissioner was correct in confirming the demand of Rs. 1,64,56,772/- for the period September 2012 to November 2012. As regards the contention that credit availed by them in July 2013 for the month of October, 2012 of M/s TVBIPL, he submitted that the same is not verified. 9. We now take up the arguments in respect of the Appeal E/50554/2022 against the order in appeal no. 182/(CRM)CE/JDR/2021 dated 11.8.2021 wherein the Commissioner (Appeals) remanded the matter to the adjudicating authority. 10. The learned counsel submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) M/s Ceat Limited - 2020 (10) TMI 471 - CESTAT-Mumbai. (iv) Ericsson India Pvt. Ltd. - 2016 (332) ELT 697 (Del.). (v) Savita Oil Technologies Ltd. - 2017 (358) ELT 331 (Tri.-Mumbai). (vi) Shree Krishna Nylon Pvt. Ltd. - 2015 (327) ELT 626 (Tri.-Mumbai) (vii) Larsen & Toubro Ltd. - 2015 (330) ELT 749 (Tri.-Mumbai) 13. The learned Counsel went on to submit that the Commissioner (Appeals) had not given any finding to their submissions made in writing or hearing. The learned counsel further contended that the Commissioner (Appeals) had remanded the order, whereas the Section 35A of the Central Excise Act, 1944 had been amended with effect from 11.07.2001 whereby the Commissioner (Appeals) is power to remand case had been withdrawn. In this contest, the counsel relied on the Supreme Court judgment in the case of M/s MIL India - 2007 (210) ELT 188 (SC) and the same has also been confirmed by the Board's Circular dated 18.02.2010. In view of the above, he submitted that the order passed by the Commissioner (Appeals) is beyond Section 35A of the Central Excise Act, 1944 and thus is liable to be set aside on the said ground alone. 14. The learned Authorised Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended, confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the matter for fresh adjudication. Hence, the learned AR contended that the power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. 16. We have heard the rival contentions. We will now consider the arguments in each appeal individually. 17. In order to appreciate the arguments with regard to the first appeal, we need to go through the order of remand of the Tribunal. The relevant para is reproduced hereinafter: "8. After hearing the rival submissions, it appears that the appellant is in a position to satisfy the Deputy Commissioner on the requirements of Rule 10(3). When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue denovo, but by providing an opportunity of hearing to the appellant in accordance with law. 9. The third issue of the present appeal is pertaining to the demand raised by the revenue by taking the view that since the product PMB is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vember - 2012 is less than the duty paid. During the said period, the appellant had availed credit on inputs amounting to Rs.52,57,688/- and the remaining credit of Rs.1,31,01,660/- had been availed on ISD invoices issued by the head office of the appellant in May 2011 for distributing the credit for the period October - 2008 to March - 2011. We find that the department has not disputed the payment of this duty at the relevant time and neither have they demanded the reversal of CENVAT credit. In view of the same, we hold that the Commissioner had erred in denying the adjustment of Rs.60,89,453/- against the demand for the period September 2012 to November 2012. 19. As regards the penalty imposed on the appellant, we find that that the adjudicating authority has held that the appellant has not properly assessed their credit reversal, irrespective of mensrea, they are liable for penalty. We are unable to accept this finding of the adjudicating authority. We note that the appellant were regularly availing credit and paying duty on the final product, even after it was held that the said process did not amount to manufacture. The department did not raise any dispute or the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test and, therefore, the principles of unjust enrichment does not apply. The above said view has been reiterated by the High Court of Bombay in Suvidhe Ltd. v. Union of India - 1996 (82) E.L.T. 177 (Bom.), and by the Gujarat High Court in Commissioner of Customs v. Mahalaxmi Exports - 2010 (258) E.L.T. 217 (Guj.), which has been followed in various cases in Summerking Electricals (P) Ltd. v. CEGAT - 1998 (102) E.L.T. 522 (All.), Parle International Ltd. v. Union of India - 2001 (127) E.L.T. 329 (Guj.) and Commissioner of Central Excise, Chennai v. Calcutta Chemical Company Ltd. - 2001 (133) E.L.T. 278 (Mad.) and the said view has also been maintained by the Supreme Court in Union of India v. Suvidhe Ltd. - 1997 (94) E.L.T. A159 (S.C.). There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of adjudication proceedings or investigation, the said amount would be in the nature of deposit under protest and, therefore, the principles of unjust enrichment would not apply. In view of the catena of decisions, available on this issue, this Court answers the first substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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