2025 (10) TMI 1201 - AT - Customs

Appellant must repay duties foregone on imported inputs under Section 28; CENVAT credit discharged excise demand

CESTAT held that the appellant, having procured rifampicin duty-free and not utilized it in export manufacture, was required to make good duties foregone ... EOU - permissibility of utilization of credit in terms of rule 3(4) of CENVAT Credit Rules, 2004 - liability to make good duties foregone on imported raw material not utilized in manufacture of export goods - burden of paymnet on taxable event - HELD THAT:- There is no doubt that ‘Rifampicin IP/BP/USP’ procured without payment of duty were not utilized for the manufacture and export of finished goods but cleared as such to other units and on payment of duties of central excise, as applicable, by debit of CENVAT credit account. Of these, ₹ 44,76,7213 pertains to duty foregone on domestic procurement of the said raw material. The appellant had foregone duties of central excise on such payment and, in terms of the exempting N/N. 22/2003-CE dated 31st March 2003, the appellant was required to make good the benefit so received. As a consequence of the availment, the supplier has been enabled clearance without discharge of duties of central excise, as applicable and, as consequence of non-utilization, the burden for payment shifted to the appellant even as leviability remained fastened on the taxable event of clearance. The appellant did discharge the burden and by recourse to CENVAT credit available as entitlement. That the shifted burden could be discharged in the same manner that the original liability could be is the claim of the appellant herein. That the appellant had chosen to utilize CENVAT credit for discharge of burden deprived them of accumulated credit to that extent, and therefore, the clearance thereof is tantamount to discharge of duty liability foregone at the time of procurement. Insofar as the imported goods are concerned, failure to utilize the said raw material does not draw consequence of anything other than liability to make good the duty foregone at the time of import. Such duties were foregone by customs authorities at the time of assessment and it is but natural that due discharge of the obligation to remit the duty foregone should also be in terms of Customs Act, 1962. It is on record that appellant has not discharged such duty liability and, therefore, the recovery effected under section 28 of Customs Act, 1962 is but in order. The impugned order is set aside to the extent of central excise duties demanded while affirming the liability insofar as duties of customs are concerned - appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether liability to make good duties foregone on imported raw material not utilized in manufacture of export goods is sustainable under the Customs Act, and whether recovery under section 28 is lawful. 2. Whether duty liability foregone on domestically procured raw material under an exemption notification becomes recoverable as central excise duty when such material is removed from an EOU without deployment in manufacture. 3. Whether an EOU may discharge the foregoing duty liability by debit to its accumulated CENVAT credit account (i.e., whether Rule 3(4) of CENVAT Credit Rules/Rule 17 of Central Excise Rules permit such utilisation to extinguish the liability), and whether that method of discharge precludes recovery or penalties. 4. Whether prior Tribunal decisions relied upon by the appellant operate as binding precedent on the present facts or are distinguishable. ISSUE-WISE DETAILED ANALYSIS Issue 1: Liability in respect of imported raw material - Customs law recovery Legal framework: Duties foregone at import under the Customs Act give rise to an obligation to 'make good' when exemption conditions cease to be met; section 28 authorises recovery of duties, interest and penalties where duty has not been discharged as required. Precedent Treatment: Prior decisions discussed facts where clearance/use were permitted or where central excise - not customs - consequences were determinative; those authorities are treated as fact-specific and not binding on the present factual matrix. Interpretation and reasoning: The Tribunal reasons that for imported goods the primary levy and consequent relief/foregoing of duty occur at import assessment; non-utilisation of imported raw material for exported manufacture simply triggers the statutory obligation to remit the duty foregone at import. The recovery under Customs law is therefore appropriate and conforms to the statutory mechanism for reinstating duties where exemption conditions are breached. Ratio vs. Obiter: Ratio - where duty was foregone at import and exemption conditions cease (non-utilisation), liability to make good that customs duty arises and recovery under section 28 is lawful. Obiter - none material beyond application of statutory principle. Conclusion: Recovery under section 28 of the Customs Act in respect of imported raw material not utilised is affirmed as lawful. Issue 2: Liability in respect of domestically procured raw material exempted at procurement - central excise consequences Legal framework: Exemption notifications that permit procurement without payment of central excise duty carry a concomitant obligation to 'make good' the benefit where conditions fail; central excise law (including section 11A and related provisions) and Central Excise Rules govern levy, discharge and reversal of credit on removal of inputs. Precedent Treatment: Earlier Tribunal rulings addressed varied fact patterns - e.g., clearances permitted by jurisdictional authorities, demands confined to central excise on manufactured goods, or inputs integrated into finished products - and therefore materially differ from the instant facts where raw material was removed as such without deployment. Interpretation and reasoning: The Tribunal finds that where duty was forgone at procurement under the exemption notification and the goods are not utilised in manufacture but removed as such, the obligation to make good the duty arises on the taxable event of clearance. The appellant did discharge central excise liability but by utilising accumulated CENVAT credit; that method of discharge is examined in Issue 3. Because the exemption benefit ultimately enabled supplier clearance without duty and the burden shifted to appellant upon non-utilisation, recovery of central excise demanded on that basis is in principle maintainable. Ratio vs. Obiter: Ratio - non-utilisation of domestically procured exempted inputs and their removal as such creates an obligation to make good central excise duty foregone at procurement. Obiter - distinctions with cases where inputs were cleared with prior permission or incorporated into finished goods. Conclusion: The principle that duty foregone on domestic procurement must be made good on non-utilisation is upheld; however, the Tribunal's ultimate decision on central excise demand is affected by Issue 3 (method of discharge). Issue 3: Permissibility of discharging the duty obligation by utilisation of accumulated CENVAT credit (Rule 3(4) CCR / Rule 17 CEx Rules) and consequences for demand and penalties Legal framework: CENVAT Credit Rules permit availment and utilisation of credit for payment of duty on inputs/clearances; Rule 3(4) and Rule 17 of the Central Excise Rules provide mechanisms for credit reversal and for exercise of option on removal from an EOU to DTA. Precedent Treatment: Appellant relied on several Tribunal decisions that allowed, in their facts, utilisation of credit or refused demands where clearances had been authorised or where liability had been otherwise treated. The Tribunal here treats those authorities as fact-dependent and not directly controlling. Interpretation and reasoning: The Tribunal recognises that the appellant discharged the central excise liability by debiting accumulated CENVAT credit. It accepts that had the goods been procured on payment of duty, credit would have been taken and reversal on removal would have been permitted under the rules. The Court reasons that the shifted burden (from supplier to appellant) could be discharged in the same manner as the original liability could be; utilising CENVAT credit to pay the duty effectively discharged the liability, albeit by consuming accumulated credit. The appellant's choice to discharge by CENVAT utilisation deprived it of accumulated credit but constituted a method of satisfying the duty obligation. Consequently, the Tribunal concludes that the central excise demand (to the extent of duties on domestic procurement) cannot be sustained where the liability was effectively discharged by utilising CENVAT credit in accordance with the statutory scheme and rules for reversal/adjustment. Ratio vs. Obiter: Ratio - utilisation of legitimately accumulated CENVAT credit to discharge duty liability arising on non-utilisation/removal of exempted inputs is an available and effective mode of discharging that liability under the CENVAT/central excise framework; where such discharge has occurred in conformity with rules, a demand for the same central excise duty is not sustainable. Obiter - observations distinguishing prior cases on varied facts. Conclusion: The Tribunal sets aside the impugned order insofar as central excise duties are concerned, holding that the appellant's debit of CENVAT credit validly discharged the central excise obligation; however, the consequence is depletion of credit, not immunity from the liability's economic effect. Issue 4: Authority and applicability of prior Tribunal decisions relied upon by appellant Legal framework: Precedents are applied according to relevance of facts and legal questions actually decided; factual dissimilarity limits precedential effect. Precedent Treatment: The Tribunal examines the earlier decisions invoked and finds that they turned on specific facts - authorized clearances, limitation of demand to central excise, inputs integrated in finished goods, or other procedural circumstances - which differentiate them from the present dispute. Interpretation and reasoning: Because the earlier rulings addressed distinct factual matrices and legal permutations (e.g., absence of objection to clearance, permission from jurisdictional authorities, or inability to segregate inputs), they do not bind the Tribunal on the present facts where imported duties remained unrecovered and where domestic procurement consequences involved the appellant's chosen mode of discharge. Thus, those decisions are distinguished rather than followed. Ratio vs. Obiter: Ratio - prior decisions are not binding where material facts differ; they are distinguished on the facts. Obiter - remarks in those decisions about general principles are not treated as controlling here. Conclusion: Prior Tribunal decisions relied upon are distinguishable on their facts and do not afford a binding precedent to defeat recovery under Customs law or the conclusion reached regarding central excise once CENVAT utilisation is considered. Overall Disposition (as reflected in conclusions on issues) The Tribunal affirms recovery under the Customs Act for duties foregone on imported raw material not utilised (section 28), and sets aside the impugned order to the extent of central excise duties demanded on domestically procured exempted raw material, holding that utilisation of accumulated CENVAT credit validly discharged the central excise obligation; prior authorities relied upon by the appellant are distinguishable on facts and not binding.