TaxTMI 
TaxTMI 
2023 (10) TMI 956
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....vure Printing Cylinders was not exempted under any notification. The contention of the department is that the exemption on cylinder is covered by the Exemption entry in respect of Printing blocks and Printing Types which is absolutely incorrect for the reason that the Printing Blocks and Printing Types does not cover in its ambit the Printing Cylinders. Printing Cylinders has a different tariff entry which is not exempted. Accordingly, the supplier has rightly paid the excise duty on such Printing Cylinders. Hence, the credit is admissible to the appellant. Without prejudice to the above, he further submits that even if it is assumed that the supplier is not required to pay the excise duty but since factually and undisputedly the supplier has paid the excise duty which has not been challenged by the Jurisdictional Officer of the supplier, the duty paid by the supplier stand good as per the law and the said duty is available as cenvat credit to the recipient of the goods. In support of his submission, he placed reliance on the following judgments: * CCE vs MDS Switchgear Ltd. 2008 (229) ELT 485 (SC) * CCE vs Creative Enterprises 2009 (235) ELT 785 (Guj) affirmed by....
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....nufacture there can be no question of levy of duty, and if duty is levied, Modvat credit cannot be denied by holding that there is no manufacture." 5. The above judgment has been upheld by the Hon'ble Supreme Court as reported in Commissioner vs Creative Enterprise 2009 (240) ELT A120 (SC). 6. In another judgment of the Jurisdictional High Court of Gujarat in the case of Nahar Granties Ltd., the Hon'ble court has passed the following order: "7. Rule 3 of the Cenvat Credit Rules, 2004 allows a manufacturer or producer of final product or a provider of taxable service to take Cenvat credit of the duty of excise specified in the First Scheduler to the Excise Tariff Act. Rule 4 of the Cenvat Credit Rules, 2004 lays down the conditions for allowing Cenvat credit. Sub-rule (1) thereof provides that Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Proviso to sub-rule (1) puts certain limitations on such immediate availability of Cenvat credit. We are however, not concerned with the proviso. 8. In terms of Rules 3 and 4 of the Cenvat ....
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....on'ble Bombay High Court also dealing with the same issue in the case of Nestle India Ltd (Supra), passed the following order: Heard learned Counsel for the parties. 2. A common question is involved in all these appeals. The question is whether; if, excise duty is levied on an assessee at place "A" and Modvat credit is sought to be availed of at place "B", it is open to the Authorities at place "B" to deny credit on the ground that no duty was payable at place "A". 3. We have accordingly re-framed question no. 4 at the time of admission of the appeals as above in all these cases. The common facts are that job works were undertaken at one place outside Goa and excise duty was paid on the goods before removing them from that place. These goods were brought to Goa and the factory owners sought to avail Modvat credit on the basis that the duty was already paid in the place outside Goa for the job work. This credit was sought to be denied by the Revenue on the ground that the job work did not attract payment of duty at all, and, therefore, the payment of duty outside Goa was of no consequence. Therefore, as a result the assessee cannot claim any credit in Goa.....
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....vail the exemption available in Notification or pay duty, when the input in question in wholly exempt from duty vide Notification No. 5/99, dated 28-2-1999 and when Rule 57C of Central Excise Rules 1944 is categorical in placing an embargo on taking of credit on inputs if the final product is wholly exempt from payment of duty?" 2. Learned standing Counsel for the department, Shri Veeraraghavan, has contended that since the raw material of the assessee had been exempted from duty vide Notification dated 28-2-1999, he could not claim Modvat credit. However, from the perusal of the impugned order, it appears that, in fact, duty was paid by the assessee's supplier despite the aforesaid notification. It may be that the supplier was unaware of the exemption notification or it may be that some condition of the notification was not complied with but, nevertheless, the fact remains that duty was paid by the assessee's supplies. This factual position is not disputed. 3. Rule 57A(1) of the Central Excise Rules reads as follows : "Rule 57A. Applicability. - (1) The provisions of this section shall apply to such finished excisable goods (hereafter, in this section, r....
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....ling the present appeal against the order passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, „The Tribunal'), arising out of Appeal No. E/1078/2004-NB-B, dated June 9, 2004, raising the following substantial questions of law: "(i) Whether the Tribunal is justified in giving an interpretation to Rule 57F(4) which is not intended? (ii) Whether it is legal to give credit of amount paid when it was not required to be paid by virtue of Notification No. 214/86-CX, dated 25-3-1986." 3. Brief facts of the case are that the assessee sent certain goods for job work. As per notification, the job worker was exempted from payment of duty. However, still he paid the duty and the assessee had availed Modvat credit thereof on account of payment of such duty by the job worker, claim of which was disallowed by the Commissioner which order was reversed by the Tribunal. It is not disputed that duty, the Modvat credit of which was availed of by the respondent was paid by the job worker even though not required to pay. The respondent has taken the credit of duty, which was actually paid. We do not dilate much on the issue as this court ha....
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....e made the payment of duty under self- assessment procedure. The said assessment of duty payment was not objected with by the department, therefore, the said assessment attained finality. Once the duty payment has been accepted by the department and no objection was raised, it cannot be said that the duty paid by the supplier is not a duty of excise. he submits that even in case, where the excise duty is admittedly not payable but the supplier of the goods discharge the excise duty and the said payment is not objected, no objection can be raised at the recipient and in this regard he placed reliance on the following judgments: * Commissioner of Central Excise & Customs vs MDS Switchgear Ltd., 2008 (229) E.L.T. 485 (S.C.) * Commissioner of Central Ex. & Customs, Surat - III vs Creative Enterprises, 2009 (235) E.L.T. 785 (Guj.). Upheld by Hon'ble Supreme Court in 2009 (243) E.L.T. A120 (S.C.) * Commissioner of C. Ex., Ahmedabad III vs. Nahar Granites Ltd., 2014 (305) E.L.T. 9 (Guj.) * Commissioner of Central Excise, Goa vs. Nestle India Ltd., 2012 (275) E.L.T. 49 (Bom.) * Commissioner of Central Excise, Chennai I vs. CEGAT, Chennai, 20....
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....arged the payment of Excise duty, they have issued invoices and filed their returns to their Jurisdiction Central Excise Officer. The Jurisdictional Central Excise officer of supplier has not whisper a word about alleged wrong assessment of duty. The department had jolly well accepted the Act of the supplier that is payment of Excise Duty. The self-assessment of payment of excise duty has attained finality as no objection was raised by the department against the supplier. Therefore, rightly or wrongly, if the assessment at the supplier's end has been accepted and no objection was raised, the same cannot be disputed at the recipient of goods for availment of Cenvat credit by the recipient. Since, the payment of duty has been assessed and the same was not challenged the duty was paid by the supplier is in terms of Section 3 of Central Excise Act, 1944 and this duty is clearly, legally available as Cenvat credit to the recipient. 4.1 Moreover, if the department is of the view that the supplier was not supposed to pay the duty in such case, the jurisdiction Officer at supplier end should have issued a Show Cause Notice for recovery of such amount under Section 11D of Central E....
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....cause as to why Modvat credit amounting to Rs. 13,08,701/- should not be disallowed under Rule 57-I of the Rules read with proviso to Section 11A(1) of the Central Excise Act, 1944 and to show cause as to why interest and penalty should not be levied and as to why plant, machinery, building etc. should not be confiscated. 5. By the order-in-original dated 30th October 2000, the Commissioner of Central Excise & Customs, Aurangabad confirmed the demand of Rs. 13,08,701/- under Section 11A of the Act and imposed a penalty equivalent to the amount of duty under Section 11AC of the Act and also a penalty of Rs. 1,00,000/- under Rule 173Q of the Rules. Recovery of interest under Section 11AB of the Act was also ordered. 6. Aggrieved by the above order-in-original, the assessee preferred an appeal before the Tribunal which has been accepted by the impugned order. Revenue, being aggrieved, has filed the present appeal. 7. The Tribunal has come to the conclusion that in fact there was no loss of revenue. It accepted the appeal by recording the following reasons : "Reasons given by the appellants for the alleged inflation of the value of the intermediate g....
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....ng Counsel for the appellant- revenue. The learned counsel has read extensively from the show cause notice and the order made by the adjudicating authority to contend that the respondent was not a manufacturer but was merely an agent of Dr. Beck & Company (I) Limited. It was submitted that in the circumstances, in absence of any independent manufacture by the respondent, there was no question of the respondent being entitled to Modvat credit under Rule 57-I(1)(iii) of the Central Excise Rules, 1944. That the Tribunal had erroneously placed reliance on its own decision in case of the respondent assessee despite the fact that the said order of Tribunal dated 28-10- 2003 had been challenged by way of Tax Appeal Stamp No. 815 of 2004. The learned counsel has also placed reliance on the Apex Court order in case of Thiagaraja Engineering Enterprises v. Assistant Collector of Central Excise, 1996 (88) E.L.T. 312 (S.C.) = (1997) 10 SCC 241. 3. Against the order made by the adjudicating authority, the respondent assessee carried the matter in appeal and the first appellate authority allowed the appeal after recording following facts. 4. I have examined the records of the c....
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....ufacture. 5. With regard to Modvat credit on duty paid inputs, I find that the appellant has received duty paid raw materials, the said raw material has been received in the factory and were utilized in the manufacture of final products. In view of this and considering the position as indicated above, I set aside the impugned order and allow the Modvat credit of Rs. 1,70,53,294.00. I also set aside the penalty of Rs. 5,00,000/- and demand of interest under Section 11AB of the Central Excise Act, 1944. 4. The Tribunal in the impugned order after recording facts in paragraph No. 2 of its order has noted that in assessee's own case in respect of same issue, for an earlier period, it was held by Tribunal that the assessee cannot be denied modvat credit by observing as under : 4. The learned Advocate appearing on behalf of the respondents submits that in respect of the same issue and in the same assessee's case, the Tribunal has held that the assessee cannot be denied the Modvat credit. Vide final order No. CB/470/03-WZB dated 28-10-2003, the Tribunal held as under:- "We have perused the records and have considered the submissions made by both sides. ....