TaxTMI 
TaxTMI 
TaxTMI 
2022 (11) TMI 288
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....out in the atmosphere, being hazardous in nature. Hence, the same is processed along with sulphuric acid to obtain ammonium sulphate which is a fertiliser. The coke oven gas after extraction of ammonia is further processed to obtain other dutiable by products. 1.2 The referred SAIL-RSP and SAIL-RFP units were simply two of the many divisions of the Appellant and were not different manufacturing plants, and the same are present in the same premise and in close proximity to each other. Also, there is a single legal entity when reference is made either to SAIL-RSP or SAIL-RFP. Undisputedly, both units are under the same management and have a common PAN, i.e., AAACS7062F. 1.3 Initially, the Appellant was granted one excise registration for the entire plant which included both SAIL-RSP and SAIL-RFP. However, on account on internal reorganization of excise divisions in Rourkela, the Excise Department suo moto granted separate registrations to SAIL-RFP (being AAACS7062FXM004) for its own administrative convenience, though it continued to remain part of the SAIL-RSP's registration as well. 1.4 During 2002-03, RFP received capital goods in the nature of spares, components and accessories....
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....d reasons for dropping such demand are recorded in the referred Order-in-Original dated 28.04.2016. 1.8 Thereafter, in furtherance to an Order-in-Review of the Ld. Commissioner, Rourkela, the Ld. Assistant Commissioner preferred an appeal before the Ld. Commissioner (Appeals), Bhubaneswar against the said Order-in-Original dated 28.04.2016 on the grounds that the transfer of CENVAT Credit is permissible only in terms of Rule 8 of the CENVAT Credit Rules, and the Appellant's case in not covered by the said rule, hence the Order-in-Original dated 28.04.2016 should be set aside. 1.9 In the above background, the Ld. Commissioner (Appeals) passed the impugned Order-in-Appeal dated 19.03.2018 setting aside the Order-in-Original dated 28.04.2016 and consequently allowed the Department's appeal. The Ld. Commissioner (Appeals) held that both the units of the Appellant were separate manufacturing units located at two different sites and separately registered with the Central Excise Department. Therefore, Rule 8 of the CENVAT Credit Rules is not applicable to the Appellant and hence availment of CENVAT Credit of the fertilizer plant by the Appellant is in contravention of Rule 4(2)(b) and R....
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.... proceedings. 2.5 Further, in terms of the definition of 'factory' in Section 2(e) of the Central Excise Act, 1944, units located in the same premises shall be considered to be 'a factory' and in terms of Rule 4 of CENVAT Credit Rules, 2002, Credit is available on receipt of goods at the 'factory of the manufacturer'. In support of such submission, the Appellant relies upon the following judgments:- a. Dhampur Sugar Mills Ltd. Vs. CCE Meerut [2001(129) ELT 73 (Tri- Delhi)] b. CCE, Meerut Vs. Dhampur Sugar Mills Ltd., [2007 (216) ELT A23(SC)] 2.6 Appellant submits that no separate books of accounts were prepared for the fertiliser plant even when the fertiliser plant was in operation. The Profit and Loss Account, Balance Sheet and all other relevant accounts of the fertiliser plant were shown under the respective accounts of RSP. Even the assets, liabilities income, expenditure, profit/ loss, etc. of the fertiliser plant were recorded together with the assets, liabilities, income, expenditure, profit/loss of RSP and were having common management, control and administration. Thus, it is impossible to state that RFP and RSP were two sperateassessees. In support of such submissio....
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.... the department in its appeal and thus, such finding of the order has attained finality. In view thereof, denial of credit to the Appellant is bad in law and such; impugned order in appeal must be set aside. 2.11 In support of submissions made above, the Appellant also relies upon the following judgments:- a. Owens Corning (India) Pvt. Ltd., Vs. Commissiner of C. Ex, Belapur [2015(39) STR 158] b. Siyaram Silk Mills Ltd., Vs. Commissioner of Central Excise, Mumbai-II[2007 (8) STR 108 (Tri.-Mumbai)] 2.12 The only allegation in the SCN was that the assessee (RSP) availed the CENVAT Credit even though he unit the unit RFP was closed and thus, such availment of credit was in violation of Rule 4(2)(b) of Cenvat Credit Rules, 2002. 2.13 The Show Cause Notice nowhere alleged regarding applicability of Rule 8 of CENVAT Credit Rules 2002 and transfer of credit from RFP to RSP. However, the grounds of appeal as well as the impugned order is based on the analysis that credit is not transferable under Rule 8 of the CENVAT Credit Rules, 2002 in the present case. Therefore, the grounds of appeal as well as the impugned order have travelled beyond the scope of show cause notice and the Resp....
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....5 (188) E.L.T. 149 (SC)] and also Continental Foundation Joint Venture v. CCE [2007 (216) E.L.T. 177 (SC)], it has been observed that when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. 2.19 Further, on identical issue where the amount involved was Rs.5,00,000/-, the SCN had already been issued, which has been adjudicated in favour of the Appellant and has attained finality in the absence of any challenge by the department. The subsequent notice cannot be issued beyond limitation as held by the Hon'ble Supreme Court in the case of Nizam Sugar Factory v. Collector of Central Excise, AP [2006 (197) E.L.T. 465 (SC)] 2.20 Further, it is a settled position of law that once it is clear that a particular case is beyond limitation, there is no scope for referring to the merits of the case. The Appellant in support of this proposition relies upon the judgment in the case of Commr. of Cus., C.Excise & S.Tax v. Monsanto Manufacturer Pvt.Ltd. [2004 (35) S.T.R. 177 (All.)] 2.21 Also, the issue involves interpretation of law. There are a number of judgements of the Tribunals and High Courts to....
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....or an amount not exceeding fifty per cent. of the duty paid on such capital goods in the same financial year : Provided that the CENVAT credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year if such capital goods are cleared as such in the same financial year : (b) The balance of CENVAT credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, if the capital goods, other than components, spares and accessories, refractories and refractory materials, moulds and dies and goods falling under heading 68.05 and sub-heading No.6801.10 of the First Schedule to the Tariff Act, are in the possession and use of the manufacturer of final products in such subsequent years. 7. Rule 8 of the CENVAT Credit Rules, 2002 provides for transfer of Cenvat Credit, which is as follows:- RULE 8. Transfer of CENVAT credit. - (1) if a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transf....
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....definition of the term "factories" that all the three units will be regarded as one factory as all the excisable goods are manufactured in the same premises. Similar views were expressed by the Appellate Tribunal in the case of J.K. Synthetics Ltd. (supra) wherein it was held that as two units fall within the same premises within one boundary wall encircling the entire area of the land allotted to the appellants in the industrial area the appellant is entitled to obtain one consolidated licence for the manufacture of its goods within its factory complex as the object behind the grant of consolidated licence is that any person manufacturing different excisable goods within one factory area is entitled to obtain one licence instead of different licences for different commodities. The decisions relied upon by the learned SDR are not applicable as the facts are different. In Devidayal Electonics case the Bombay High Court was interpreting the term "Industrial Unit". In fact in the said case it was observed by the Bombay High Court that as the Notification uses the word "factory and it uses the word industrial unit, it must, therefore, be assumed that the words were intended to bear dif....
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....nand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut (supra) has held that when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. The relevant paragraph is reproduced:- "27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the ma....