TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 1298
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....Central Excise Act upon the appellant and under Rule 26 (2) upon HUL are imposable. 2. Ms. Manshi Patil, Learned Counsel along with Shri Viraj Reshamwala, Advocate appearing on behalf of the appellant submits that restriction on availment of CENVAT Credit in respect of supplementary invoices as provided under Rule 9(1)(b) of Cenvat Credit Rules, 2004 is applicable only in a case where the clearance of goods by the supplier is made by way of sale of goods and not otherwise. In the present case since the appellant being a job worker received the goods not as a purchase, but on returnable basis for job work and no sale is involved. Accordingly, the provision of Rule 9(1)(b) of CENVAT Credit Rules is not applicable. She placed reliance on the following judgments: * Karnataka Soaps & Detergents- 2005 (192) ELT 892 (T) * -do- Upheld by Karnataka HC-2010 (258) ELT 62 (Kar.) * KArnantaka Shops & Detergents- 2009 (237) ELT 485 (T) * -do- Upheld by Supreme Court- 2010 (254) ELT A-40 (SC) * Jai Raj Ispat Ltd.- 2007 (217) ELT 272 (T) * Upheld by AP High Court-2009 (245) ELT 118 (AP) * Bosch Chassis Sstems India- 2017 (358) ELT 225 (T) * Jindal Steel & Power Ltd.- 2017 (....
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....upport of which reliance was placed on the following judgments : * Karnataka Soaps & Detergents- 2005 (192) ELT 892 (T) * -do- Upheld by Karnataka HC-2010 (258) ELT 62 (Kar.) * KArnantaka Shops & Detergents- 2009 (237) ELT 485 (T) * -do- Upheld by Supreme Court- 2010 (254) ELT A-40 (SC) * Jai Raj Ispat Ltd.- 2007 (217) ELT 272 (T) * Upheld by AP High Court-2009 (245) ELT 118 (AP) * Bosch Chassis Sstems India- 2017 (358) ELT 225 (T) * Jindal Steel & Power Ltd.- 2017 (355) ELT 568 (T) * United Phosphorous Ltd.-2014 (313) ELT 418 (T) * Sri Warana Shahakari Dudh Utpadak Prakriya Sangh Ltd.-2017 SCC Online CESTAT 1026 2.5 As regard the appeal of Hindustan Unilever Ltd, she submits that since the demand of CENVAT Credit itself is not sustainable, no consequential penalty can be imposed. She further submits that Hindustan Unilever have not aided or abetted the appellant job worker for availing any wrong credit. Therefore no penalty upon Hindustan Unilever Ltd is imposable. 3. Shri Ashok Thanvi, learned Assistant Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the findings of the impugned order. 4. We have carefully co....
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....eived on returnable basis which does not involve the sale of goods as defined under Section 2(h) of Central Excise Act as under: "Sale" and "purchase", with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration." From the above definition of sale in sale and purchase there are following criteria to cover the transaction as sale or purchase (i) transfer of the possession of goods by one person to another in the ordinary course of trade or business (ii) such transfer must be against consideration in cash or deferred payment or other valuable consideration. In the facts of the present case, since the goods were received by the appellant on returnable basis for job work. The ownership of goods remained with supplier M/s. Hindustan Unilever Ltd. As against the supply of goods there is no consideration paid by the appellant to M/s. Hindustan Unilever Ltd. Therefore, the transaction is clearly not covered under 'sale' of goods by M/s. Hindustan Unilever Ltd to the appellant. Therefore the combined reading of Rule....
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....that the Id. Counsel for the appellant stated that the duty originally paid by Raipur Unit was passed on by supplementary invoices to Raigarh Unit and the credit was accordingly availed. In this background, the appellant/assessee is not proceeding further with any relief by way of claiming refund on this favourable order as the supplementary invoices and the credit thereupon have already been availed and settled. The denial of credit to Raigarh unit is on the ground that the differential duty has been paid by Raipur Unit against detection of evasion of duty involving suppression of facts, etc. with intent to evade the payment of duty and hence the credit on such duty is barred in terms of Rule 9(1)(b) of CCR, 2004. We note that original authority (Raipur Unit), though confirmed differential duty for extended period, observed that the appellant on their own calculated the duty liability and paid the differential duty. Hence, he did not find any substance in imposition of penalty under Section 11AC. In such situation, denial of credit availed by another unit of appellant is not sustainable. In this connection, we also refer to decisions of Tribunal in Karnataka Soaps & Detergents ....
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....ase additional amount of excise duties or additional duty of customs leviable under Section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Act or of the Customs Act, 1962 or the rules made thereunder with intent to evade payment of duty." (emphasis supplied) A very careful reading of the above rules shows that the bar for availment of credit on supplementary invoices would operate only when the additional amount of duty becomes recoverable from the manufacturer on account of non- levy or short levy by reason of fraud, collusion or any wilful misstatement or suppression of facts etc. Further, prohibition to avail credit on supplementary invoices will operate only in the case of sale. In other words the receiver of the input should have purchased the goods from the manufacturer who had to pay the additional amount of duty after detection of suppression of facts, fraud, etc., on his part. Therefore, ....
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.... the sister concerns of the appellant. 5.3 In the light of above observations issue framed at para 5(i) has to be decided in favour of the appellant as per the judgment of this very Bench in case of Mafatial Industries Ltd. v. CCE, Daman [2009 (241) E.LT. 153 (Tri.-Ahmd.)] where following law has been laid down in para 4, reproduced below: "4. After careful consideration the submissions made by both sides, we find that if the appellants would have paid higher duty by adopting higher assessable value at the time of clearance of the fabrics, their unit situated at Nadiar would have taken credit of the same. It is not the case where the goods are being sold by one assessee to another. It is basically taking out money from one pocket and putting the same in other pocket of same trouser. The other unit at Nadiar was appellant's own unit and it was only for the procedural and technical purposes that the duty was required to be paid at the time of clearance from the assessee's unit. Tribunal, in number of cases, has held that where the duty paid by one unit is available as credit to other unit of the same assessee, the entire issue is revenue neutral and the demand should no....