9911796707
TMI Blog2024 (6) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same in domestic market as well as for export under claim of Rebate or under Bonds and thereby they were taking Cenvat credit wrongly. 1.1 During investigation, it was found that as regard the product 'PVC Processing Aid', Shri Shital Jain in his statement Stated that they were importing the said material from M/s Shanding Ruifeng Chemical Co. Ltd, China, in paper bags of 25 Kgs each and having the following face tag on one side of each paper bag as:- "SHITAL INDUSTRIES PVT. LTD., PVC PROCESSING AID, PA-222, LOT NO: NET WT: 25 KGS" And after receiving the material, they were stamping the similar details as mentioned above on the other side of the bag. "SHITAL INDUSTRIES PVT. LTD., PVC PROCESSING AID, PA-222, LOT NO: NET WT: 25 KGS" 1.2 Shri Shital Jain also informed the investigating officer that appellant were not doing any manufacturing process on the said material and even not opening the bag but they were stamping the other details on the blank side of the bags and sometimes they were printing their monogram also on the bags. 1.3 Similarly, as regard 'PVC Impact Modifier', Shri Shital Jain Informed that they were importing the said material from M/s Shanding R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50% of irregularly availed CENVAT credit amount of 2,24,06,256/-, under erstwhile Section 11AC/ erstwhile Section 11AC (1) (b) read with Rule 15 of CENVAT Credit Rules, 2004. However, as per the first proviso to erstwhile Section 11AC of the Central Excise Act, 1944 and erstwhile clause (c) of sub-section (1) of Section 11AC of CEA, 1944 (applicable for the period from 08.04.2011 to 13.05.2015), if they pay the amount of CENVAT credit determined under sub- para (i) above along with interest payable thereon as ordered under Sub-para (ii) above within thirty days from the date of communication of this order, the amount of penalty shall be twenty-five percent of the demand of CENVAT credit. The benefit of reduced penalty shall be available if the amount of penalty so determined is also paid within the aforesaid period of thirty days." Since, the appellant have been paying the duty at the time of clearance which is more or less equivalent to the Cenvat credit availed the Adjudicating Authority has appropriated the said payment against the availment of Cenvat credit. Hence there was no deferential amount recoverable. However, the penalties and interest were demanded. Being aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, J & K, Jammu Vs. North Sun Enterprises Industrial Estate [2012 (284) E.L.T. 75 (Tri. - Del.)] Exide Industries Ltd. vs. Commissioner of Central Excise & Service Tax, Delhi-III [2016 (333) E.L.T. 101 (Tri. - Del.)] Hindustan Mineral Products Co. Ltd. Vs. CCE, Surat-II [2009 (235) E.L.T. 148 (Tri. Ahmd.)] Jindal Stainless Steelway Ltd. Vs. CCE, Raigad [2014 (310) E.L.T. 194 (Tri. Mumbai)] CCE, Belapur Vs. Merck Specialities Pvt. Ltd. [2015 (317) E.L.T. 375 (Tri. Mumbai)] 3. Shri Rajesh Nathan, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that since the imported bags were already labeled and the same details were reaffixed by the appellant on the other side of bag. Therefore, that activity does not amount to labeling of re-labeling and was also not required to render the goods marketable, as with the already given details on the bags the goods were marketable. Therefore, the activity of the appellant does not amount to manufacture. Consequently, appellant was not eligible for Cenvat credit. He placed reliance on the following judgments:- Excide Industries Ltd Vs. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the goods more than the credit availed. The Commissioner has also considered the representation of the appellant and forwarded to the Board for issuance of the required notification. The Board has neither rejected the proposal of the Commissioner, nor issued the notification for regularization of credit availed. In that situation, we are of the view that the benefit of the Circular No. 911/1/2010-CX., dated 14-1-2010 is available to the appellants. 10. Further, it is the admitted fact that the appellants are the manufacturer of excisable goods also. Therefore, as per Rule 3(5) of the Cenvat Credit Rules, 2004, if the activity in question of the appellants does not amount to manufacture, the appellants are required to pay duty equal to credit taken on clearance of such inputs under cover of Central Excise invoices. As in this case, the activity of the appellants does not amount to manufacture, therefore, these inputs are cleared as such. In that event, as per Rule 3(5) of Cenvat Credit Rules, 2004 the appellants are required to pay duty equal to the credit taken thereon and the appellants have paid duty more than the credit availed. 11. The learned Advocate also relied on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iles and Tools Raymond Ltd. v. Commr of C. Ex. & Cus., Mumbai-III [2011 (273) ELT 280 (Tri.- Mumbai)]:- "8. We do agree with the submissions of the learned DR that appellant are not entitled to take such credit as held by the judicial pronouncements of this Tribunal as well as the Hon'ble High Courts and the Hon'ble Supreme Court in the case of Narmada Chematur Pharmaceuticals Ltd. (supra). In this case the appellant have taken inadmissible credit, therefore, they were issued show-cause notices to reverse the same. From the facts of this case it is very much clear that the appellant have taken inadmissible credit but they have paid the same at the time of clearance with value addition. In that scenario, as held by the Hon'ble Apex Court in the case of Narmada Chematur Pharmaceuticals Ltd., cited supra, where the assessee has wrongly availed modvat credit and was liable to reverse such amount and it was stated that the duty paid and modvat credit availed were identical and therefore consequences of payment of excise duty after availing the credit was revenue neutral. In that case the appeal filed by the Revenue was dismissed by the Hon'ble Apex Court holding that in view of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shall pay duty on goods received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. [Explanation. - The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods.] If there is any difficulty in following the provisions of (3) sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the [Principal Commissioner or Commissioner, as the case may be]. Removal of goods for job work, etc. RULE [16A. - Any inputs received in a factory may be removed as such or after being partially processed to a job worker for further processing, testing, repair, re-conditioning or any other purpose subject to the fulfilment of conditions specified in this behalf by the [Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be] having jurisdiction.] Special procedure for removal of semi-fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
