TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 238
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....ctured by PVC waste and scrap and which was unconditionally exempted under Notification No. 12/2012 from payment of Central Excise duty. 3. Consequent to these observations against M/s. Shiv Industries, a show cause notice bearing No. 668 dated 04.05.2017 was served upon the appellant being the recipient of 'PVC Filler Hollow' from said M/s. Shiv Industries proposing the recovery of Rs. 23,75,829/- alleged to be a wrongly availed CENVAT Credit by the appellant passed on the invoices issued by 7 different manufacturers of the raw material i.e. 'PVC Filler Hollow'. The said proposal of reversing the aforesaid amount of CENVAT Credit was initially confirmed vide Order in Original dated 23.10.2017. In an appeal against the said order, Commissioner (Appeals), vide his order dated 10.12.2018 had remanded the matter to the Original Adjudicating Authority for passing a speaking order after ascertaining whether 'PVC Filler Hollow' supplied by suppliers other than M/s. Shiv Industries was reprocessed from the scrap or waste on which the duty was not required to be paid. 4. Consequent to the said order of remand, the Original Adjudicating Authority vide order dated 26.4.2019, has allowed th....
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....d of recipient of the goods. Learned Counsel has placed reliance upon the decision of Apex Court in the case of Sarvesh Refractories (P) Ltd. vs. Commissioner of Central Excise & Customs, reported in [2007 (218) ELT 488 (SC)]. It is submitted that Rule 3 CCR entitles the manufacturer to avail CENVAT Credit on valid duty paid imports. There is no provision in entire CCR which disallows availment of CENVAT Credit despite the duty paid on inputs. Learned Counsel has relied upon the decision of Madras High Court in the case of CCE, Chennai-I vs. CEGAT, Chennai reported in [2006 (202) ELT 753 (Mad)] to impress upon that for the purpose of availment of CENVAT Credit, duty actually paid is relevant and concept of duty payable is not relevant for availing the CENVAT Credit. 5. It is further impressed upon by the learned Counsel on behalf of the appellant that the issue about the applicability of Board's Circular No. 940/1/2011-CX dated 14.1.2011 as amended by Notification No. 12/12 CE, was also considered by the Bangalore Bench of this Tribunal in the case of Neuland Laboratories Ltd. vs. CCE, Hyderabad reported in [2015 (317) ELT 715 (Tri-Bang)] wherein it was held that when the Bo....
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....e credit to the appellant on the ground that the payment made by M/s. Shiv Industries cannot be called as duty, irrespective of the settled law that classification cannot be reopened at the end of recipient of goods. From that angle, there is no infirmity in the order under challenge, the appeal is accordingly prayed to be dismissed. 7. After hearing the rival contentions of the parties and perusing the entire record, I find that the appellant who are engaged in the manufacture of electric wire and cable were availing the benefit of Cenvat Credit of duty paid on the input i.e. 'PVC Filler Hollow' so received from 7 different suppliers/ manufacturers thereof. However, the Revenue seek to deny the CENVAT Credit availed on the invoices of one supplier out of said seven supplier i.e. M/s. Shiv Industries on the ground that the inputs / 'PVC Filler Hollow' supplied by him are exempted from payment of duty in terms of Board Circular No. 940/1/2011-CX dated 14.1.2011 and Notification No. 12/12 CE, and the manufacturer thereof i.e. M/s. Shiv Industries has wrongfully paid the duty on the said product. Accordingly, the duty paid by M/s. Shiv Industries and availed as CENVAT Credit by the a....
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....s. CCE, Hyderabad [2015 (317) ELT 705 (Bang)] has held : "4. .. that the assessing officer in-charge of the assessee who has taken the credit cannot sit in judgment as to whether the duty was payable or not on the goods supplied. What is required to be examined is whether duty has been paid or not and if duty has been paid by the supplier/assessee, the receiving assessee cannot be found fault with if he takes Cenvat credit of the duty paid so long it is used as input and Cenvat credit is admissible. I find that the decision of Hon'ble High Court of Madras in the case of Commissioner of Central Excise, Chennai-I v. CEGAT, Chennai [2006 (202) E.L.T. 753 (Mad.)] is applicable to the facts of this case. In that case, the Hon'ble High Court came to the conclusion that Rule 57A(1) of Central Excise Rules, 1944 provides for availment of Cenvat credit of duty paid and not payable. The High Court observed that this distinction is very important and which indicates that what is to be taken into account is the factual state of affairs. Thereafter, the Hon'ble High Court observed that once the duty has actually been paid on the raw material, the credit is admissible. In this case also, it is....
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....r the availment of CENVAT Credit on the duty which stand actually paid. Commissioner (Appeals) has neglected the settled law while not extending the benefit of this settled law in favour of M/s. Shiv Industries despite invoking the settled law with respect to remaining six suppliers. 9. Coming to another aspect that classification of the goods cannot be changed at the recipient's end, the issue is again settled and is no more res integra as is apparent from the decision of Hon'ble Apex Court in the case of Sarvesh Refractories (P) Ltd. vs. Commissioner of Central Excise & Customs (supra) wherein it has been held that the classification by the manufacturer only has to prevail, the same cannot be altered at the buyers' end . Once M/s. Shiv Industries has classified its PVC under Chapter Heading 3904 and admittedly Chapter heading 3904 is not merely for such PVC which is manufactured by scrap and is exempted from duty. The said classification cannot be denied by the appellant specially when the invoices received by him shows the payment of duty by his supplier. The Hon'ble Apex Court in another decision of Commissioner of Central Excise & Customs vs MDS Switchgear Ltd. has held that ....