TaxTMI 
TaxTMI 
2022 (9) TMI 63
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....Industries Ltd. Both the units are using limestone for the manufacture of Cement. All the mines are either owned by Century Textiles & Ind. Ltd. (lease is in the name of Maihar Cement prop. Century Textiles & Ind. Ltd). The captive limestone mines are managed by Unit-I, which set up in 1973. Unit-2 was set up in 1995-96. There is no mine in the name of M/s Maihar Cement Unit- 2. Royalty on limestone is also paid to the State Government by Unit-I only, as M/s Maihar Cement Unit-2 do not have any explosive license in their name. 2.2 M/s Maihar Cement with the help of explosives (on which they are availing Cenvat Credit) excavate limestone, part of which they are utilizing in their own factory to manufacture clinker and cement which are chargeable to duty. Part of the limestone so excavated is transferred by them to their sister unit-M/s Maihar Cement Unit-2 from the mines itself without payment of duty, being exempted. Thus the cenvatable inputs (explosives) are used by Maihar Cement Unit I in the manufacture of dutiable products (clinker and cement), as well as exempted goods i.e., limestone. M/s Maihar Cement Unit I have not maintained separate accounts for inputs used in the ma....
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.... 6(3)(b) of Cenvat Credit Rules 2002/2004, i.e. 'sale' of limestone (exempted product) from unit 1 to unit 2 is not satisfied. In other words, Commissioner held that it is only an internal transfer of limestone from unit 1 to unit 2. The Commissioner also relied upon an earlier decision of the Tribunal being Final order no. A/53065/2016-EX(DB) dated 11.8.2016, in the respondent's own case, wherein the department's appeal was dismissed on same issue, which has attained finality (as was not appealed against). 2.9 Aggrieved by the Adjudication order, department have filed appeals before the Tribunal being the present batch matters. These set of appeals were dismissed by the Tribunal vide its final order dated 17.1.2018. Department further filed appeals before the Hon'ble Madhya Pradesh High Court at Jabalpur. The Hon'ble High Court vide its order dated 9.1.2020 remanded the matters back to the Tribunal to examine the issue on the point that-once word 'sale' does not find a mention in amended Rule 6(3)(i) after 1.3.2008, whether the Tribunal judgment is correct (as Rule 6(3) was substituted w.e.f. 01.04.08). The period in dispute is March 2007 to July, 2015? 3. Learned AR appeari....
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....f input, and input services taken during that period, or ii) pay an amount as determined under sub Rule (3A). 6. Further sub Rule (3A) provides that the manufacturer shall intimate in writing to the Range Superintendent of their intention to reverse Cenvat credit as per sub-Rule 3(A), giving details of input and outputs etc. and shall determine the proportionate credit required to be paid out of the total credit of input and input services taken during the month or period. Thus, the assessee will be required to reverse the proportionate credit as per the formula given. 7. It is further urged by Learned AR that in the amended provision, the reference to value with respect to 'sale price' for determination of the quantum of reversal of Cenvat credit, has been omitted. As a result, it is immaterial for the period under dispute (from 01/3/08) whether or not the exempted goods are removed pursuant to sale. 8. Accordingly, it is urged that the appellant is required to pay duty at the specified rate as applicable during the period of dispute, towards reversal of Cenvat credit. Accordingly, he prays for allowing the appeal(s) and confirmation of the proposed demand under Rule 6....
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....intermediate product comes into existence, still entire credit would be eligible so long as the final product is taxable. This judgment applies in full force to the facts of present case in as much as the limestone is used in the manufacture of taxable final product i.e. cement, and as such the demand under amended Rule 6(3)(i) also does not survive. This judgment of Escorts Ltd. (supra) was followed by the larger bench of Tribunal in the case of Sterlite Industries (I) Ltd Vs CCE, Pune reported at 2005 (183) ELT 353 (Tri.LB). Thus the present department appeals for the period after 1.3.2008 also deserve to be dismissed. 11. Respondent further submits that it has reversed proportionate credit on explosives used in the excavation of limestone, which is cleared to unit 2. The above fact has also been recorded by the Commissioner in his order in original, that year after year, the respondent have followed the practice of reversing the proportionate credit on explosives used in the excavation of limestone, which is cleared to unit 2. In other words, no credit has been taken by respondent i.e. unit 1 on explosives qua limestone cleared to unit 2. Thus if the proportionate credit has ....