TaxTMI 
TaxTMI 
2019 (2) TMI 937
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....-1) ('HBP V1'). 21.09.2010 Intimation of effective date of de-bonding The appellant applied to the Deputy Commissioner of Central Excise, LTU ('DC-LTU') for de-bonding the Prill Unit EOU w.e.f. 01.10.2010. 28.09.2010 Advance License issued DGFT issued Advance License to the appellant for discharging custom duty on imported raw material at the time of de-bonding. 01.10.2010 Intimation of stock to the department The appellant submitted self-certified stock statement of raw material, capital goods, consumables, work-in-progress ('WIP') and finished goods lying in stock as on cut-off date 11.11.2010; 23.11.2010; 29.11.2010 Advance License issued DGFT issued Advance License to the appellant for discharging custom duty on imported raw material at the time of de-bonding. 23.12.2010 Completion of stock verification The DC-LTU intimated that the stock verification has been completed by central excise officers and the appellant was directed to discharge central excise and custom duty at applicable rates. 11.02.2011 Computation of Liability The appellant submitted the computation of liability to the DC-LTU and requested to confirm the prop....
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....nt filed an application of re-credit of cenvat credit reversed during the course of investigation. 09.07.2015 Refund application The appellant also filed a refund claim of the duty & interest paid under protest during the course of investigation. 06.08.2015 Deficiency notice by department The department issued deficiency letter to the appellant with respect to the above refund claim. 20.10.2015 Reply to deficiency notice The appellant replied to the above queries of the department and submitted various documents to prove its claim. 28.10.2015 Re-credit sanctioned In the meantime, the Assistant Commissioner, LTU, Mumbai sanctioned the above re-credit claim of cenvat credit reversed of the appellant filed on 06.04.2015. 06.01.2016 SCN issued for refund application The department issued the show cause notice calling upon the appellant to show as to why their refund claim should not be rejected. The said show cause notice once again alleged that the mode of payment of duties by the appellant at the time of de-bonding was incorrect. 05.05.2016 Reply filed The appellant filed a detailed reply to the above show cause notice. 11.05.2....
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....onth upto 27.04.2012. 17.04.2012 Request for NDC The Respondent once again requested the DC-LTU to issue the NDC. 26.04.2012 NDC received The Deputy Commissioner-LTU issued NDC to exit from the EOU scheme. 15.06.2012 Final de-bonding order The Development Commissioner issued final de-bonding order. _______ DC-LTU objected mode of payment of duty The Deputy Commissioner-LTU, long after the entire process was over, disputed the mode of payment of excise and customs duty by the appellant and directed the appellant to discharge its duty liability in cash. Further, the Deputy Commissioner-LTU also directed to reverse cenvat credit availed on CVD and SAD paid on raw material and capital goods (indigenous as well as importer). February, 2013 to March, 2013 Payment of duty in cash and reversal of credit under protest The appellant again discharged the above liability in cash along with interest and reversed cenvat credit CVD & SAD that was taken on the original duty payment. The said payment and reversal were made 'under protest'. 01.11.2013 SCN issued on the basis of above investigation The department issued show cause notice to the ap....
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.... was against the appellant, before the Commissioner (Appeals) 30.11.2017 O-I-A upheld the O-I-O The impugned order-in-appeal came to be passed by the Commissioner (Appeals) rejecting the appeal filed by the Respondent - Present appeal Hence, the present appeal filed by the assessee against rejection of refund claim. 4. The details of the appeals filed in the present case are tabulated as under - S.No. Appeal filed by whom Appeal filed against Order Number along with date Unit 1. Revenue Order-in-Original 186/Commr/WLH/LTU-M/CX/2014 dated 03.09.2014 Prill 188/Commr/WLH/LTU-M/CX/2014 dated 03.09.2014 Oral 2. Assessee Order-in-Appeal BHO-EXCUS-001-APP-510-17-18 dated 30.11.2017 Prill BHO-EXCUS-001-APP-505-17-18 dated 30.11.2017 Oral 5. Personal hearing was held on 14.08.2018, Mr. Bharat Raichandani, Ld. Advocate, appeared on behalf of the appellant/respondent (M/s Lupin) and reiterated the submission made in their appeal memorandum. 6. We have carefully gone through the facts of the case on record, grounds of appeal in the Appeal Memorandum and submissions made by the respective parties. APPEAL FILED B....
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....s. 19,70,432/-. The noticee fraudulently & deliberately with intention to defraud the exchequer got the licenses mentioned above endorsed from the DGFT office, much later, that too after initiation of enquiry, to the effect that valid de-bonding of EOU. Since the advance authorizations were procured subsequent to cut off date, the duty through these licenses could not be debited. They paid these duties in cash vide challan No.06 and 07 both dated 15.02.2013. 11. We find that the above submission is without any merit for the reasons as follows: 12. First, the said ground is not a ground on limitation. The said ground does not challenge the finding of the Commissioner, reproduced above, on limitation. It is not even prayed that the demand is not time barred. The said ground of appeal does not urge that the dropping of the demand by not invoking the extended period of limitation under proviso to section 11A of the Central Excise Act or section 28 of the Customs Act is not correct. Hence, the reliance placed on the said ground is incorrect. 13. Second, in any event, the said ground of appeal is beyond the entire proceedings. The same is being raised for the first time during h....
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....as paid the duties in respect of the stock as on cut-off date. The show cause notice merely disputes the mode of discharge of duty i.e. whether Excise duty on Customs duty ought to be paid. Hence, it cannot be said that the Respondent indulged in any collusion, willful misstatement or suppression of facts with intent to evade duty. If the intention of the Noticee was to evade duty, then, even Excise duty would have not been paid on the exit stock (on indigenous procurements). Hence, the mode of payment of duty as alleged in the show cause notice, at best, be said to be a case of incorrect interpretation of law. However, no mala fide intent or collusion can be attributable on the assessee so as to invoke larger period of limitation under Section 28 (4) of the Customs Act. Further, the Respondent has followed the above method/mode of payment for de-bonding of another unit (Prill Unit), where no objection was raised by the department. Hence, the Respondent proceeded on the same basis. Moreover, all the relevant facts have been appropriately disclosed to the Department vide various letters and periodical returns. The Respondent communicated their intention for de-bonding from EOU vide ....
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....m duty and excise duty respectively. Therefore, when a unit gives up its EOU status, the said benefit availed by the unit (ie, whatever duty foregone) should be given back. Hence, the EOU exiting from the EOU scheme shall be liable to pay customs duty and excise duty on imported goods and indigenously procured goods respectively lying in the stock as on cut-off date. This view is in line with the said notifications as well. 21. Second, the duty payable for clearance of goods from EOU to DTA unit is duty of Central Excise. Similarly, when the EOU converts to DTA the duty payable on finished goods and goods procured indigenously is central excise duty. This view has been taken by Larger Bench of this Tribunal in Vikram Ispat vs. CCE 2000 (120) ELT 800 (Tri. - LB) wherein the issue was primarily the availability of credit of tax paid on input received from an EOU and determination of the nature of duty on clearance of finished goods produced or manufactured within an EOU. The Larger Bench has, inter alia, held that clearance of goods by an EOU to any place in India is not 'import' as defined under section 2(23) of the Customs Act, 1962. 22. Third, the taxable event contemplated ....
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....s India P. Ltd. vs. CCE - 2015-TIOL-3066-CESTAT-BANG (ii) CCE vs. Sequent Scientific Ltd. - 2018-TIOL-1475-CESTAT-MUM Availment of cenvat credit of the excise duty paid on indigenous procured goods, SAD paid on capital goods imported and CVD and SAD paid on imported raw material 27. The Revenue contends that the respondent is not eligible to avail cenvat credit on the inputs and consumables as the cenvat credit of the same is available at the time when the inputs and consumables are procured in the factory of manufacture of final product. This contention is without any legal basis. 28. We find that as per Rule 3 of the Cenvat Credit Rules, 2004 allows cenvat credit of the duty paid on goods procured by the Respondent is available provided the following conditions are satisfied: (i) the goods imported or indigenously procured qualify as 'inputs' or capital goods' in terms of definition under Cenvat Credit Rules, 2004; (ii) capital goods and inputs are received in the factory of the manufacturer; and (iii) the capital goods and inputs are used in the factory of the manufacturer for manufacture of excisable goods or used for providing any output service. 29. We....
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.... by customs and central excise authorities and final de-bonding order by Development Commissioner, EOU shall not be entitled to claim any exemption for procurement of capital goods or inputs. However, in the present case, EPCG and advance licenses were procured prior to issuance of 'No Dues Certificate'. The Respondent achieved positive NFEE and submitted certified statement of duty liability on the exit stock on March 31, 2011 which was duly accepted by DC-LTU. In the meanwhile, the Respondent obtained 'No Objection' for utilizing EPCG License towards payment of Customs duty on imported capital goods from Development Commissioner on August 03, 2011, and thereafter, the DFGT granted EPCG license to the Respondent. As admitted in the show cause notice, the Respondent presented such EPCG licenses towards discharge of duty on imported capital goods; however, the same was rejected on the sole ground that these licenses were obtained pursuant to the cut-off date. These facts have been ignored by the department in their show cause notice as well as appeals filed by them. Hence, the entire case of the department is frivolous and based on incorrect facts. Thus, the payment of customs duty ....
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.... 1999, and the EPCG license was obtained on August 5, 1999, and benefit under the EPCG scheme was granted even though the EPCG license was obtained after acquiring the in-principle approval for de-bonding by Development Commissioner. 36. Any ways, department has already sanctioned the refund in this matter and as such, this is not a subject matter in the present appeal. Duty foregone on finished goods and raw materials exported pursuant to cut-off date is allowed 37. The Revenue contends that the Respondent is liable to pay customs duty on the finished goods exported and raw material re-exported after the cut-off date as the respondent shall not be eligible for the benefits available to an EOU. There is no basis for this argument. 38. We find that the respondent did not discharge duty on finished goods amounting to Rs. 58,27,344/- (Prill) &Rs.10,90,669/- (Oral), lying in exit stock, which were exported out of India under Bond B-17, before the issuance of No Due Certificate by the Deputy Commissioner. Further, the respondent discharged duty of Rs. 62,91,409/- (Prill) & Rs. 18,67,092/- (Oral) on the balance finished goods lying in stock at the time of payment of duty by d....