TaxTMI 
TaxTMI 
TaxTMI 
2018 (12) TMI 845
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....redit on the same. Accordingly, proceedings had been initiated proposing recovery of credit availed vide show cause notices dated 29.2.1996 and 3.3.1997. These proceedings were dropped by the adjudicating authority vide adjudication orders No. 15/1997 dated 26.5.1997 and No. 19/97 dated 30.6.1997 respectively. The said adjudication orders were reviewed and appeals filed before the Tribunal namely Appeal No. E/1219/1998 and Appeal No. E/1379/1998, which were disposed of vide Final Order Nos. 301 & 302/2003 dated 2.5.2003, inter alia holding that the sugar plant being exported in CKD condition as such was never assembled; that the finding relates to manner of utilization of credit and not the eligibility to take MODVAT credit; that bought out items cannot be considered as eligible input or capital goods for availing MODVAT credit and sugar plant machinery installation has to be considered as immovable property and not goods. Based on these conclusions, the Tribunal set aside the impugned order and remanded the matter to the original authority with the following directions:- "8. In view of our above discussion, we are of the considered opinion that the bought out items, both i....
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....nt set up by it in Vietnam and therefore, there cannot be any question of availing any MODVAT credit. 27. For the aforestated reasons as well as for the reasons stated by the Tribunal in the impugned order, we are of the view that the Tribunal had come to a correct conclusion and the conclusion so arrived at by the Tribunal does not require any interference. 28. The appeals are, therefore, dismissed with no order as to costs." 1.3 When the above proceedings were pending before the Hon'ble Supreme Court, twenty other periodical show cause notices were issued for succeeding periods and matters were kept in call book. Pursuant to the aforesaid decision of the Hon'ble Supreme Court, the cases were caused to be adjudicated denovo vide Order-in-Original Nos. 8 & 9/2014 dated 29.4.2014 inter alia confirming the demand in respect of two show cause notices which had been earlier remanded for recomputation by the Tribunal and appealed before the Hon'ble Supreme Court. In respect of the subsequent twenty show cause notices, the amounts proposed to be demanded as irregularly availed MODVAT / CENVAT credit were confirmed, along with interest vide a common Order-in-Original Nos. 11 to 30/20....
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....ese appeals is same as aforesaid in the two appeals disposed as above. These twenty appeals are also remanded with the directions and observation as above." (Emphasis supplied) 1.5 In denovo adjudication, the Commissioner vide Order Nos. 1 to 22/2017 dated 29.3.2017, inter alia proceeded to examine the applicability of the judgment of the Hon'ble Supreme Court to the subsequent periods and also the argument of the appellant that the applicability of the judgment should be restricted only to the first two show cause notices namely SCN No. 24/1996 and Nil/1997. The adjudicating authority rejected the plea put forward by the appellant that there was substantial change in the statutory definition of input subsequent to the period covered in the judgment delivered by the Hon'ble Supreme Court. It was held that ―regardless of these changes in law or the facts of the case, subsequent to the period considered in the judgment of the Hon'ble Supreme Court, the ratio of the judgment continues to be applicable throughout the entire period of dispute". Based on such reasonings, the adjudicating authority inter alia held that the impugned goods have no relationship whatsoever with the ma....
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....0 19/2017 dated 29.3.2017 April 2009 to Dec. 2009 E/41452/2017 21,53,426/- 20. 3/2011 dt. 14.1.2011 20/2017 dated 29.3.2017 Jan. 2010 to Dec. 2010 E/41453/2017 16,67,800/- 21. 3/2012 dt. 2.2.2012 21/2017 dated 29.3.2017 Jan. 2010 to Dec. 2011 E/41454/2017 12,34,437/- 22. 3/2013 dt. 24.1.2013 22/2017 dated 29.3.2017 Jan. 2012 to Nov. 2012 E/41455/2017 12,21,717/- 1.6 Nine appeals No. E/41435 to 41443/2017 arising out of the same impugned order (Sl. No. 1 and 3 to 10 in above table) have already been disposed by common order dated 41661 to 41669/2018 dated 31.5.2018, by this Tribunal, inter alia, dismissing the appeals on the ground that the issue involved therein had been agitated right upto the Hon'ble Supreme Court and had attained finality by the judgment of the highest court as reported in 2013 (294) ELT 353 (SC), wherein the appeals of the appellant had been rejected.. For these reasons, the Tribunal in the aforesaid order did not find any grounds to interfere in the impugned orders and dismissed the appeals. 2.1 The present batch of twelve appeals before us are those listed in Sl. No. 9 to Sl. No. 20 of the Table in para 1.4 supra. 2.2 When these matte....
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....d. The Apex Court therein examined the issue in the light of the requirement in the definition of inputs during the period prior to 01.03.2011 that the same be used inside the factory of manufacture to qualify for CENVAT credit. ...... However, the impugned period has witnessed substantial change in the definition of inputs and hence the said Apex Court‟s decision against the same Appellant cannot be cited in revenue‟s favour." (v) When the erstwhile Central Excise Rules were replaced with new set of Rules from 2000, a separate set of Rules were issued under CENVAT Credit scheme as CENVAT Credit Rules, 2000. Rule 16A of the new Rules provided for credit of duty paid on the goods brought into the factory not only for the purposes of repair, refining, reconditioning etc., but also for other purposes by virtue of the wordings ―any other reason". Initially, this was interpreted by the Department in a manner that only goods which were brought into the factory on return (meaning the final products manufactured, which otherwise would not qualify as inputs/capital goods). But the judicial forums had time and again clarified that the said rule applies to all duty paid goo....
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....respect of goods not manufactured by them. 3 01.07.2001 Central Excise Rules, 2002 16.Credit of duty on goods brought to the factory. - (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assesse shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer 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 a manufacturer who removes the goods. (3) If there is any di....
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....is not in order which is per incuriam. 3.1 The ld. AR Shri A. Cletus appeared and argued on behalf of the Department. He submitted that the issue whether the appellants are eligible for CENVAT credit on the bought out items was already decided by the Hon'ble Supreme Court in the appellant's own case as reported in 2013 (295) ELT 353 (SC). In paras 24 and 25 of the said decision, the Hon'ble Supreme Court had observed that the finished products of the appellant is sugar plant. The sugar plant having been installed in Vietnam, the final products have not suffered duty and therefore the appellants are not eligible for CENVAT credit on the bought out items which are not used for manufacture in their factory in India. This being so, the said decision would cover the issue in these appeals also since the appellant does not have a case that the final product namely sugar plant has suffered duty in India. It is also his case that the Tribunal vide Final Order No. 41389 to 41410/2015 dated 29.9.2015 had earlier considered the appeals filed by the appellant involving the show cause notices of these appeals. In para 8 of the said final order, the Tribunal had observed that the issue on merit....
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....es and have gone through the case records. 5.1 The ld. AR has drawn attention to the fact that the identical dispute for earlier periods had been in litigation and had culminated in the judgment of the Hon'ble Supreme Court in the appellant's own case as reported in 2013 (295) ELT 353 (SC), wherein inter alia, the Hon'ble Apex Court had held that input credit would not be available on machinery bought out by the assessee which was not even unpacked or tested and exported in exact condition along with machinery manufactured by assessee. We first intend to examine this contention. The aforesaid decision of the Hon'ble Supreme Court reported in 2013 (295) ELT 353 (SC) was confined to two show cause notices dated 29.3.1996 and 3.3.1997, covering the period July 1994 to January 1997. The Hon'ble Supreme Court in para 21 of the judgment had gone into the conditions covering eligibility of MODVAT credit to inputs and had referred to its own earlier judgment in the case of Madras Cements Ltd. - 2015 (254) ELT 3 (SC) wherein it had been observed as under:- "15. In order to avail of MODVAT/CENVAT credit, an assessee has to satisfy the assessing authorities that the capital goods in ....
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....s discussed supra, the Tribunal vide Final Order No. 41389 to 41440/2015 dated 21.9.2015 remanded the matter relating to show cause notices dated 29.3.1996 and 3.3.1997 with certain directions and in respect of the remaining 20 notices also, the Tribunal remanded the matters for denovo adjudication. Out of these 22 impugned orders (Order-in-Original No. 1 to 22/2017 dated 29.3.2017), appeals relating to Order-in-Original Nos. 1, 2 and 4 to 10/2017, also dated 29.3.2017 were separately taken up for hearing and vide Final Order Nos. 41661 to 41669/2018 dated 31.5.2018 were disposed. The dispute covered in these final orders was for the period from July 1994 to August 2001. In the said final order, the Tribunal had inter alia held as under:- "6.7 We also have no quarrel with the contention of the ld. counsel that taxes cannot be exported; that it is not the intention or policy of the Government otherwise; that in such cases where the manufacturer procures some of the parts from other manufacturers and removes them along with the remaining self-manufactured goods, the clearances for all practical purposes has to be treated as effected from factory gate. We do take cognizance of the L....
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....case." 5.4 The present appeals which are pending decision herein, are Appeal Nos. E/41444 to 41455/2017 arising out of the remaining Orders in Original No. 11/2017 to 22/2017 dated 29.3.2017 covering the periods September 2002 to November 2012. 5.5 On a closer scrutiny, we find that the earlier Tribunal's Final Orders No. 301 & 302/2003 dated 2.5.2003 covered the appeals involving the two show cause notices dated 29.2.1996 and 3.3.1997 and which had gone right upto the Hon'ble Supreme Court involved the definition of inputs under Rule 57A of the erstwhile Central Excise Rules 1944, with effect from 31.3.1997. For immediate reference, the relevant portion of the definition of inputs under Rule 57A is as under:- ―57A. Applicability. - (1) The provisions of this section shall apply to such finished excisable goods (hereafter, in this section, referred to as the final products) as the Central Government may, by notification in the Official Gazette, specify in this behalf for the purpose of allowing credit of any duty of excise or the additional duty under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may be specified in the said notification (hereafter, in this s....
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....ch amount as may be specified in the said notification and allow the credit of such declared duty deemed to have been paid in such manner and subject to such condition as may be specified in the said notification even if the declared inputs are not used directly by the manufacturer of final products declared in the said notification, but are contained in the said final products. Explanation. - For the purposes of this sub0rule, it is clarified that even if the declared inputs are used directly by a manufacturer of final products, the credit of the declared duty shall, notwithstanding the actual amount of duty paid on such declared inputs, be deemed to be equivalent to the amount specified in the said notification and the credit of the declared duty shall be allowed to such manufacturer." [INSERTED VIDE NOTN NO:14/96-C.E. (N.T.) DATED 23.7.1996] Emphasis supplied So also, the definition of ―capital goods" was defined in Rule 57Q of the same Central Excise Rules, 1944 read as under:- "capital goods" means- (a) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any subst....
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....ducts, whether directly or indirectly and whether contained in final product or not". However, the new definition w.e.f. 31.3.2000 included within the scope of inputs, accessories of final products cleared along with the final products. (b) With the introduction of CENVAT Credit Rules, 2001, w.e.f. 1.6.2001, the same definition of ‗inputs' which were brought about in 31.3.2000 above was incorporated under Rule 2(f) of CENVAT Credit Rules, 2001 and later under Rule 2(g) of CENVAT Credit Rules, 2002. (c) With the introduction of CENVAT Credit Rules, 2002 brought about by Notification No.5/2002-CE (NT) dated 1.3.2002, the definition of ―inputs"was amended as under:- ―(g) ―input" means all goods, except high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not, and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture....
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....ts' continued as above till its substitution with effect from 1.7.2011 when Rule 2(k) was further substituted as under:- "input" means - (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or (iii) all goods used for generation of electricity or steam [or pumping of water] for captive use; or (iv) all goods used for providing any output service, or; (v) all capital goods which have a value upto ten thousand rupees per piece.] but excludes - (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; (B) any goods used for - (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of service portion in the execution of a works contract or construction service as listed under clause (b) of section 66E of the Act;] (C) capital goods, except when,- (i)....
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....ling under Chapter 82, chapter 84, Chapter 85, Chapter 90, heading No.68.02 and sub-heading No.6801.10 of the First Schedule to the Tariff Act; (ii) pollution control equipment (iii) components, spares and accessories of the goods specified at (i) and (ii) above; (iv) moulds and dies; (v) refractories and refractory materials ; (vi) tubes and pipes and fittings thereof; (vii) storage tank, used in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office;" (h) After introduction of CENVAT Credit Rules 2004, vide Notification No.23/2004-CE (NT) dated 10.09.2004, the definition of ―capital goods" was defined as under:- (b) ―capital goods" means,- (A) the following goods, namely:- (i) all goods falling under Chapter 82, chapter 84, Chapter 85, Chapter 90, heading No.68.02 and sub-heading No.6801.10 of the First Schedule to the Tariff Act; (ii) pollution control equipment (iii) components, spares and accessories of the goods specified at (i) and (ii) above; (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials ; (vi) tubes and pipes and fittings there....
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....that parts or components or even sub-assemblies of the sugar plant machinery, which may well be bought out items that are removed along with the remaining portions manufactured by the appellant, will also find a fit within the fold of ―inputs". 5.10. In arriving at this conclusion, we are only following the ratio of the Hon'ble Supreme Court in Ramala Sahkari Chini Mills Ltd. Vs. Commissioner of Central Excise, Meerut - I as reported in 2016 (334) ELT 3 (SC), wherein the Hon'ble Supreme Court held as under:- "We have heard the learned counsels for the parties. We have also read and considered the order dated 29th November, 2010 [2010 (260) E.L.T. 321 (S.C.)] of this Court referring the matters to a larger bench for a decision on the question as to whether the definition of the term "input" in Rule 2(g) of the Cenvat Credit Rules, 2002 is to be understood to include items beyond the six items mentioned specifically in Rule 2(g). The answer to the question referred, according to us, is self-contained in the order of reference which has referred, inter alia, to a three Judge Bench decision of this Court in Regional Director, Employees‟ State Insurance Corporation v. Hig....
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....xxxxxx xxxxx xxxxxx xxxx 64. On the construction of Sections 3 and 4 we have come to the conclusion that the shares vest in the Central Government even if we read Sections 3 and 4 in conjunction with Sections 7 and 8 of the Act on the well settled principles which we have reiterated before. The expression "in relation to" has been interpreted to be the words of widest amplitude. See National Textile Corporation Ltd. and Others v. Sitaram Mills Ltd. (supra). Section 4 appears to us to be an expanding section. It introduces a deeming provision. Deeming provision is intended to enlarge the meaning ....
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.... in relation to", to credit of duty will be eligible in respect of inputs / all the goods exported by the appellant for eventual transformation into a complete sugar plant, both self-manufactured including also those bought out goods / inputs removed as such that were in accompaniment. In consequence, the credit of duty that may have been paid even on the bought out goods / inputs would very much accrue to the appellants as CENVAT credit during the impugned period, in respect of these twelve appeals. 6.1 The second alternative argument made by the Ld. counsel is that even under Rule 16 of CENVAT Credit Rules, 2000, credit of duty paid was eligible to be taken on goods brought into the factory not only for the purpose of repair, refining, reconditioning etc. but also for other purposes by virtue of the wordings ―any other reason". 6.2 Ld. counsel has also drawn our attention to Board's clarification No. 607/44/2001-CX dated 13.12.2001, clarifying the scope of the said Rule 16. Ld. counsel has also pointed out that the said Rules was further amended vide Central Excise Rules, 2002, which made the scope of Rule 16 even wider. 6.3 To understand these arguments and contentions,....
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....ng to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer 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 a manufacturer who removes the goods. (3) If there is any difficulty in following the provisions of 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]*." (*- this amendment was made in 2014)." 6.4 After analyzing the aforesaid evolution of Rule 16 ibid, we find merit in the arguments of the Ld. counsel, namely that whereas earlier a manufacturer could only bring his own....
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.... xxxxxx xxxxx xxxxxx xxxx 6. We find that the ld. counsel made various alternative submissions. We find that activity of the appellant, i.e., receipt of duty paid goods, i.e., Oil Slump Body, Cylinder Head & Rover Cylinder, availment of Cenvat credit thereon and reissue the same on payment of duty or for export is squarely covered by Rule 16 of the CER, 2002....... From the above rule, it is clear that the assessee is entitled to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is t....
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.... help to the Revenue. As per my above discussion, I am of the considered view that in case of bought out imported goods if duty is paid equal to the Cenvat credit, demand does not exist ....." (c) In the case of Commissioner of Central Excise, Mumbai Vs. M/s. TATA Steel Ltd. - 2017 (349) ELT 783 (Tri. Mum.), it had been observed as under:- "6. We also observe that the demand is pertaining to the period 29-3-2000 to 28-5-2004. Therefore, the period from 29-3-2000 to 30-6-2001 is not covered by Rule 16. However, even if Rule 16 was not available, the respondents have taken credit on the input and cleared after the processing of drawing for export. As per this transaction, it is nothing but the availment of credit on the input and if at all the activity does not amount to manufacture it is removal of input as such. The removal of input either can be on the payment of duty which is equal to the Cenvat amount or can be cleared without payment of duty for export under bond. Therefore, the Cenvat credit availed by the respondents either before 1-7-2001 or thereafter and the processed goods have been cleared for export, the Cenvat credit is legally admissible. It is not the case of the ....
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.... any other reason", the rule would apply. Thus, I do not find that there is contravention of any of the provisions of Cenvat Credit Rules, 2004. The activity falls within the ambit of Rule 16 of Central Excise Rules, 2002. On such score, the demand of interest and imposition of penalty is unsustainable. 9. The impugned order is therefore, set aside. The appeal is allowed with consequential reliefs, if any." The combined take away from all the aforesaid decisions of the Tribunal, when applied to the appeals under decision would mean that even on the bought out items, which are being exported as such, the CENVAT credit is very much available to the appellant. 7. As mentioned, in our earlier Final Order No. 41661 to41669/2018 dated 31.5.2018, we dealt with nine appeals arising out of the very same impugned order No. 1 to 22/2017 dated 29.3.2017. We then found it proper and correct to reject the appeals by adhering to judicial propriety which required us to follow the Hon'ble Supreme Court's decision in the appellant's own case reported in 2013 (295) ELT 353 (SC). It is however pertinent to note that in all those nine appeals, the period of dispute covered by the said judgment of t....
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....e, even if regarded as merchant exporter, was entitled to such rebate and hence denial to them as a manufacturer would be grossly inequitable; that the principle and policy of „non-exportability‟ of taxes is jeopardized if the contention of the Revenue is accepted. 6. The appellant-assessee cited Flat Products Equipments (I) Ltd. v. Commissioner of Central Excise [2011 (272) E.L.T. 104], Dicitex Dicor Pvt. Ltd. v. Commissioner of Central Excise [2012 (286) E.L.T. 626] and Finolex Cables Ltd. v. Commissioner of Central Excise [2007 (210) E.L.T. 76 (Tri.-Mumbai) = 2007 (5) S.T.R. 261 (T)]. It is seen that In Re : Flat Products Equipments (I) Ltd. (supra) the voluminous nature of the contents compelled piecemeal removal but, as long as value of the „bought-out‟ parts is also included in the value of machinery, credit of duty was permissible. In Re : Dicitex Dicor Pvt. Ltd. (supra), Cenvat credit taken on booklet containing designs, drawings, etc. of fabrics, even though not manufactured, was considered as essential inputs without which the fabrics could not be manufactured. This Tribunal In Re : Finolex Cables Ltd. (supra) held that the appellant, being eligi....
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....te that the assessee-appellant manufactures pressure parts of boilers in the factory and such other parts as required for the complete installation of the boiler in its functional form is procured from outside. In executing the contracts entered into with the domestic purchasers, the pressure parts are cleared from the factory and the other components are sourced directly for delivery at the erection site. 9. Identical matter had come up for decision before this Tribunal to determine whether the duty liability arises only on the pressure parts or on the boiler, as such, including the „bought-out parts‟. The Tribunal in Commissioner of Central Excise, Pune-I v. Thermax Bobcock & Wilcox Ltd. [2005 (182) E.L.T. 336 (Tri-Mumbai)] decided that, in view of the sub-heading 8402.10 of the schedule to the Central Excise Tariff Act, 1985 and Rule 2(a) of the Interpretative Rules, it is the boiler which is the final product of the manufacturer which, being physically impossible to remove from the factory in assembled form, is, nevertheless, classifiable as boiler per se and consequently the duty is liable to be discharged on the value of the boiler in complete form including the....
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....bout the fact that the bought out parts have been exported on payment of duty under claim for rebate and the jurisdictional Assistant Commissioner has also passed the claim for rebate vide his order dated 29-11-2007 holding that the bought out parts form part of the complete machinery. In the appellant‟s own case, referred to supra, it was held that even though the goods were cleared in piecemeal the goods were classifiable as rolling mills and galvanising lines and not as parts thereof. What was cleared by the appellant was the complete machine. Further, the Board‟s circular dated 3-12-2006 makes it abundantly clear that even if inputs are removed as such they could be exported either under bond or under claim for rebate of duty and the Cenvat credit on the parts would be available. In the case of Narmada Chematur Pharmaceuticals Ltd. (referred to supra) the Hon‟ble Apex Court has clearly held that when the amount of Cenvat credit wrongly availed is exactly equivalent to the amount of excise duty paid by not availing the exemption the consequences is revenue neutral and hence the demand for such wrong availment of credit is not sustainable in law. 7. ... ... ......