2019 (12) TMI 1695 - AT - Central Excise

CESTAT Allows Cash Refund of CENVAT Credit Under Rule 5; Further Distillation Not Considered Manufacture

M/s VVF Ltd. Versus Commissioner of Central Excise, Belapur, Navi Mumbai

The CESTAT Mumbai allowed the appeal for cash refund of accumulated CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004. The Revenue's contention ... 100% EOU - Cash refund claims of the accumulated credit under Rule 5 of the CENVAT Credit Rules, 2004 - inputs used in the manufacture of finished goods exported under Rule 5 of the CENVAT Credit Rules, 2004 for the period October 2008 and November, 2008 - Marketibility of goods - HELD THAT:- It is not in dispute that the appellants received duty paid distilled fatty acid from their other unit at SION, Mumbai subjected it to further process of distillation and exported the same. They have claimed refund of accumulated CENVAT Credit paid on inputs after export of the finished goods following the laid down procedure under Rule 5 of CENVAT Credit Rules, 2004. Revenue initially sanctioned the cash refund of accumulated CENVAT Credit but latter issued a show-cause notice for recovery of the credit on the ground that the raw materials/inputs i.e. distilled fatty acid received by the appellant is since already marketable and further distillation of same does not result into `manufacture' and accordingly, on export of the said goods, cash refund cannot be allowed. Further, since the process of distillation carried out by the appellant is continuous one and there is no one to one correlation between the inputs and export goods manufactured and cleared in a particular month, accordingly, cash refund of accumulated credit cannot be granted to the appellant. Marketibility of goods - HELD THAT:- The appellant admittedly received duty paid distilled fatty acid and in the impugned order the learned Commissioner (Appeals) observed that the raw material is subjected to further process of distillation. The finding of the learned Commissioner (Appeals) is that the further distillation process only improves/enhances the marketability of the raw material i.e. the distilled fatty acid, hence cannot be considered that a new commodity resulted out of further distillation. On the issue of one to one correlation between the inputs and finished goods exported during the month so as to allow refund of the accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004, we find that the issue is considered by this Tribunal in a series of cases referred by the learned Advocate where under it has been held that to claim refund of accumulated credit under Rule 5 of CENVAT Credit Rules, 2004, there is no need to show that the same input on which credit taken and claimed as fund must have been used in the finished goods and exported during the period for which the refund is claimed. The impugned orders are set aside and the appeals are allowed. 1. ISSUES PRESENTED and CONSIDERED 1. Whether the process of distillation of fatty acid carried out by the appellants amounts to 'manufacture' within the meaning of Section 2(f) of the Central Excise Act, 1944, particularly in light of Chapter Note 9 to Chapter 38 of the Central Excise Tariff Act, 1985. 2. Whether enhancement of marketability of an already marketable product through further processing constitutes manufacture. 3. Whether a one-to-one correlation between inputs and finished goods exported in a particular month is necessary to claim cash refund of accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004. 4. Whether denial of refund under Rule 5 of the CENVAT Credit Rules, 2004 can be sustained on the ground that the process does not amount to manufacture without initiating proceedings for denial or recovery of CENVAT credit under other provisions. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 & 2: Whether the process of distillation amounts to manufacture and the effect of enhancement of marketability on this determination - Relevant Legal Framework and Precedents: Section 2(f) of the Central Excise Act, 1944 defines 'manufacture'. Chapter Note 9 to Chapter 38 of the Central Excise Tariff Act, 1985 states that the adoption of any treatment to render the product marketable to the consumer shall amount to manufacture. The Hon'ble Supreme Court in the case of Air Liquide North India Pvt. Ltd. held that if a process imparts distinct marketability different from the original product, it amounts to manufacture. The Tribunal's earlier decision in S.D. Fine Chem Pvt. Ltd. distinguished between mere enhancement of purity and manufacture. - Court's Interpretation and Reasoning: The Tribunal noted that the appellants received duty-paid distilled fatty acid and subjected it to further distillation (including fractional distillation and blending), enhancing its marketability and value. The learned Commissioner (Appeals) held that since the product was already marketable, further distillation did not amount to manufacture. However, the Tribunal found that Chapter Note 9 explicitly includes any treatment that renders a product marketable as manufacture, irrespective of prior marketability. The Tribunal distinguished the S.D. Fine Chem case, as the Chapter Note 9 deemed clause was not present at that time, making it inapplicable to the present facts. The Supreme Court's Air Liquide judgment was relied upon to support that enhancement or change in marketability constitutes manufacture. - Key Evidence and Findings: The appellants demonstrated that the process involved multiple steps beyond simple distillation and resulted in value addition (approximately Rs. 28,600 per metric ton). The process rendered the product more marketable to a particular consumer set. - Application of Law to Facts: Applying Chapter Note 9 and the Air Liquide principle, the Tribunal concluded that the process undertaken by the appellants amounts to manufacture as it renders the product marketable in a distinct manner. - Treatment of Competing Arguments: The Revenue's reliance on the S.D. Fine Chem case and the assertion that the process was mere distillation was rejected. The Tribunal held that the specific tariff note and Supreme Court precedent override the earlier Tribunal decision. - Conclusion: The process of further distillation and blending undertaken by the appellants amounts to manufacture under the Central Excise Act and related tariff provisions. Issue 3: Requirement of one-to-one correlation between inputs and finished goods for cash refund of accumulated CENVAT Credit under Rule 5 - Relevant Legal Framework and Precedents: Rule 5 of the CENVAT Credit Rules, 2004 provides for cash refund of accumulated CENVAT Credit on inputs used in manufacture of exported goods. The Tribunal's prior decisions in cases such as CCE Vs. Motherson Sumi Electric Wires, CCE Vs. Ambica International Pvt. Ltd., Philco Exports Vs. CCE, and Capiq Engineering Pvt. Ltd. Vs. CCE have held that strict one-to-one correlation between inputs and exported finished goods is not necessary, especially where manufacturing is a continuous process. Circulars No. 84/2001-Cus and 85/2001-Cus dated 21.12.2001 endorse the use of FIFO accounting methods in such cases. - Court's Interpretation and Reasoning: The Tribunal accepted that the appellants' manufacturing process is continuous, making physical one-to-one correlation impractical. However, correlation can be established through accounting and documentary evidence. The FIFO method and uniform assessable value of inputs support this approach. - Key Evidence and Findings: The appellants submitted verification reports by the Range Superintendent and accounting records showing input-output ratio on an average basis. The Revenue challenged the evidence's adequacy, noting the Chartered Accountant certificate was average-based and that some documents were lost during file transfer. - Application of Law to Facts: Given the continuous manufacturing process and uniform input valuation, the Tribunal found that the absence of physical one-to-one correlation does not preclude refund claims. Documentary and accounting evidence suffices to establish correlation. - Treatment of Competing Arguments: The Revenue's objection to the average-based input-output ratio and missing documents was noted, but the Tribunal emphasized that prior case law permits such accounting methods. The loss of some documents was not fatal to the appellants' claim. - Conclusion: No strict one-to-one correlation is required to claim cash refund of accumulated CENVAT Credit under Rule 5 where the manufacturing process is continuous and documentary evidence supports the correlation. Issue 4: Denial of refund under Rule 5 without recovery proceedings for inadmissible credit - Relevant Legal Framework and Precedents: Rule 5 of the CENVAT Credit Rules, 2004 governs refund of accumulated credit but does not deny the availability of CENVAT credit itself. Recovery of inadmissible credit is governed by Rule 3, Rule 6, Rule 13 of the CENVAT Credit Rules and Section 11A of the Central Excise Act, 1944. - Court's Interpretation and Reasoning: The concurring Member observed that if the Revenue's case is that the process does not amount to manufacture, then the proper course would have been to deny or recover CENVAT credit through appropriate proceedings. Denial of refund under Rule 5 does not extinguish the credit itself, which remains available for use in domestic clearances. Since the Revenue did not initiate proceedings under Rule 13 or Section 11A for recovery of inadmissible credit, they cannot deny refund under Rule 5 on the ground that the process is not manufacture. - Key Evidence and Findings: No evidence was produced to show that the Revenue sought to deny or recover credit under the relevant provisions, only that refund was denied. - Application of Law to Facts: The Tribunal held that denial of refund under Rule 5 is not a substitute for credit denial or recovery proceedings. The appellants' credit remains valid and can be utilized for domestic clearances. - Treatment of Competing Arguments: The Revenue's position that the process is not manufacture was accepted in the context of refund denial but rejected as a basis for denying credit without formal proceedings. - Conclusion: The Revenue cannot deny refund under Rule 5 on the ground that the process is not manufacture without initiating credit recovery or denial proceedings under the appropriate provisions. The credit remains valid and available. 3. FINAL CONCLUSIONS - The process of further distillation and blending carried out by the appellants amounts to manufacture under the Central Excise Act, 1944, as it renders the product marketable in a distinct manner, supported by Chapter Note 9 to Chapter 38 and Supreme Court precedent. - Enhancement of marketability of an already marketable product through further processing is sufficient to constitute manufacture. - Strict one-to-one correlation between inputs and finished goods exported in a particular month is not necessary for claiming cash refund of accumulated CENVAT Credit under Rule 5, especially in continuous manufacturing processes where accounting methods like FIFO apply. - Denial of refund under Rule 5 does not equate to denial of CENVAT credit itself; the Revenue must follow prescribed procedures for credit denial or recovery, which were not initiated in this case. - Consequently, the impugned orders denying refund are set aside and the appellants are entitled to cash refund of accumulated CENVAT Credit as claimed.