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of <h1>Tribunal rules for appellants, no time limit for CENVAT Credit, free packing not included in assessable value</h1> <h3>M/s Vinayak Industries and M/s Vishal Industries Versus Commissioner of Central Excise And Service Tax, Jammu and Kashmir</h3> M/s Vinayak Industries and M/s Vishal Industries Versus Commissioner of Central Excise And Service Tax, Jammu and Kashmir - TMI Issues Involved:1. Utilization of CENVAT Credit.2. Inclusion of the value of corrugated boxes in the assessable value of tin containers.3. Validity of the refund claims under Notification No. 56/2002-CE.Summary:1. Utilization of CENVAT Credit:The appellants argued that there is no time limit fixed under CENVAT Credit Rules, 2002 for availing credit on inputs received in the factory, and credit can be taken as per the choice of the assessee. They contended that Notification No. 56/2002 does not stipulate any condition that if duty is paid from PLA without fully utilizing the available CENVAT Credit, refund will not be applicable. The Tribunal agreed with the appellants, referencing Rule 4 of CENVAT Credit Rules 2004 and CBEC Circular No. 345/2/2000-TRU dated 29.08.2000, which clarify that there is no outer time limit prescribed for availing CENVAT Credit. The Tribunal cited the case of Steel Authority of India Ltd. and concluded that the word 'may' in sub-rule (1) of Rule 4 cannot be read as 'shall'.2. Inclusion of the value of corrugated boxes in the assessable value of tin containers:The appellants argued that the cost of packing material supplied free of cost is not includible in the assessable value of the excisable goods. The Tribunal agreed, referencing the Supreme Court's decision in Jauss Polymers Ltd., which held that if the manufacturer asks the customer to bring their own container and does not charge anything therefor, the cost (or value) of the packing cannot be notionally added to the price at which the goods are sold.3. Validity of the refund claims under Notification No. 56/2002-CE:The appellants contended that even if duty is paid from PLA without fully utilizing the CENVAT Credit available, it cannot be a ground to deny cash refund under Notification No. 56/2002, as such unutilized credit of a month can be utilized for payment in subsequent months, leading to a revenue-neutral situation. The Tribunal agreed, referencing its decision in Shreenath Industries, which held that the excess amount paid by the appellant is merely a deposit, not a duty, and thus, the provisions of Section 11A of the Central Excise Act, 1944, are not applicable. The Tribunal also noted that the department had accepted the procedure followed by the appellants in earlier refund cases and could not take a contrary stand in subsequent cases, citing the Supreme Court's decision in Novapan Industries Ltd.Conclusion:The Tribunal found that all the issues raised in the impugned show-cause notice were squarely covered in favor of the appellant. The appellants did not violate any provisions of either CENVAT Credit Rules, 2004, or the conditions of Notification No. 56/2002. The demands raised, penalties imposed, and the impugned order were set aside, and the appeals were allowed.
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