TaxTMI 
TaxTMI 
2023 (3) TMI 1505
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....ber 1998 (Appeal No.E/795/2002) and November 1998 to March, 2000 (Appeal No.E/1219/2003), the appellant, manufacturers of aerated waters falling under Chapter 2202 of the Central Excise Tariff Act, 1985, received PET performs, a raw material for manufacturing of packing material from an 100% EOU and availed CENVAT credit of duty paid by the said 100% EOU less than the additional customs duty leviable on like goods under Section 3 of Customs Tariff Act,1975 in accordance with Notification 05/1994CE(NT) dt.01.3.1994 and No.21/1999 CE(NT) dt. 28/02/2009, as the case may be applicable during the period. Show-cause notices were issued to the appellant for recovery of the credit of Rs.34,11,655/- (E/795/2022) and Rs.1,01,78,411/- (E/1219/2003) alleging excess cenvat credit being availed by them prescribed under the relevant Notifications read with applicable Modvat/CENVAT Credit Rules. Consequently, the demand notices were adjudicated and the same were dropped holding that the modvat/cenvat credit availed by the respondent was legal and proper. Aggrieved by the said orders, Revenue preferred appeals before the learned Commissioner(Appeals) who in turn upheld the orders of the adjudicatin....
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....osing the said Misc. Applications vehemently argued that this Tribunal has no jurisdiction to review its own order as the power is not conferred on the Tribunal. The second set applications filed after considerable period of time and hence barred by Limitation. He submitted that therefore, the applications are not maintainable and liable for rejection. In support, he referred to a plethora of judgments on the subject . 5. Learned AR for the Revenue on the other hand argued that pursuant to the disposal of the appeal by the Hon'ble High Court giving liberty to the Revenue to file review application, the same were filed immediately on 10.07. 2006. Second set of ROM applications were filed pursuant to the observation by the Bench of this Tribunal on the last date of hearing i.e. 03/11/2021. Therefore, the applications filed by the Revenue are maintainable and be heard accordingly. It is his contention that the Ahmedabad Bench of this Tribunal in the case of Indian Oil Corporation Ltd. Vs. CCE &ST Vodadara-1 [2022 (6) TMI CESTAT-Ahmedabad], in similar circumstances, implemented the direction of the Hon'ble Supreme Court where the apex court permitted the appellant to approach the Tr....
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.... has heavily relied upon the judgement of Larger Bench of Tribunal in Vikram Ispat's case, appeal against the said judgement was filed before the Hon'ble Bombay High Court. He also referred to a series of judgement where the credit was limited only to the extent of CVD paid by an 100% EOU. 8. Learned advocate for the respondent Shri Ravi Raghavan, answering to the said arguments has submitted that the respondent has rightly availed the cenvat credit of the additional duty (CVD) paid by the 100% EOU on clearance of the PET performs which were raw material for the respondent used in the manufacture of packing materials in their factory. The additional duty of customs(CVD) was computed as per Notification No.2/95-CE dt. 04/01/1995 and Notification No.22/95-Cus dt. 16/03/1995 applicable to an 100% EOU. It is his contention that from time to time, notifications were issued under erstwhile Rule 57A of Central Excise Rules, 1944 prescribing nature and the extent of duty admissible as Modvat credit to a manufacturer. He submits that the first notification was 177/86 CE dt. 01.3.1986, it was superseded by Notification No.5/94-CE(NT) dt. 01/03/1994 and the same notification also later sup....
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....posing the appeals has not mentioned Notification No.177/86-CE dt. 01/03/1994 and No.21/99-CE(NT) dt. 28/02/1999 but decided the dispute referring to Notification No.5/94-CE(NT) dt. 01/03/1994 and following the principle of law laid down in the judgment of the Larger Bench of the Tribunal in Vikram Ispat's case (supra). Since the grounds specifically taken by the Revenue were not referred to in the order of the Tribunal; therefore the Revenue approached the Hon'ble High Court of Karnataka and the Hon'ble High Court remanded the matter to the Tribunal with a liberty to the Revenue to agitate the said grounds by filing a review application. As already observed above that on a suggestion from the Bench to proceed with the merit of miscellaneous applications and accepted by both sides, we now take up the merit of the case itself. 11. The crux of the issue is: whether the extent of modvat credit admissible on the duty paid by an 100% EOU during the relevant period i.e. from January 1998 to March 2000 as held by the adjudicating authority and the first Appellate authority is correct or otherwise. As mentioned above, this Tribunal has taken a view following the ratio laid down in the L....
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....ty leviable on like goods under section 3 of the Customs Tariff Act, 1975 (51 of 1975), equivalent to the duties of excise specified under (i) and (ii) above paid on such inputs; Notification No. 21/99-CE(NT): In exercise of the powers conferred by rule 57A of the Central Excise Rules, 1944 (hereinafter referred to as the said rules), read with clauses 119 and 121 of the Finance Bill, 1999, which clauses have, by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 5/94-Central Excises (N.T.), dated the 1st March, 1994, the Central Government hereby specifies ... .... ..... ..... (c) credit of specified duty in respect of inputs produced or manufactured- (i) in a free trade zone and used in the manufacture of the final products in any other place in India; or (ii) by a hundred per cent export-oriented undertaking or by a unit in an Electronic Hardware Technology Parks or Software Technology Parks and used....
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....by them, Section 3(1) of the Central Excise Act provides that the duty of excise shall be an amount equal to the aggregate of the duties of customs on like goods produced or manufactured outside India, if imported into India. There is substance in the submissions of the learned Advocates for the appellants that the nature of the duty levied on the goods manufactured by 100% E.O.Us. is central excise duty whereas the measure of collection of duty is customs. The measure of collection of duty does not change the nature of duty. In support of their contention the learned Advocate has relied upon the decision in the case of D.G. Gouse & Co. Pvt. Ltd. v. State of Kerala supra, wherein it was held that a tax has two elements: subject of a tax and the measure of a tax and decided cases establish a clear distinction between the subject matter of a tax and the standard by which the tax is measured. In this case a tax imposed by State Government on buildings on the basis of capital value of the Assets was held to be valid by the Supreme Court holding that for the purpose of levying tax under Entry No. 49, List II of the Seventh Schedule to the Constitution, the State Legislature may adopt an....
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....quantum of Modvat credit available to the manufacturer in respect of the goods procured from a 100% E.O.U. The only method, which, we feel, is available to the Revenue is as suggested by the learned Counsel, i.e. ascertain firstly the additional duty of customs leviable on like goods, if imported into India from outside India; ascertain the actual amount of duty paid by the 100% E.O.U. on the goods cleared to any part in India under Notification No. 2/95; after ascertaining these two elements the Modvat credit has to be allowed to the manufacturer on the basis of the first proviso to notification No. 5/94-C.E. As per first proviso to this notification credit shall be restricted to the extent of duty which is equal to the additional duty leviable on like goods. If the additional duty is less than the actual duty paid on the inputs cleared from 100% E.O.U., the manufacturer in India shall be eligible only for the credit equivalent to the additional customs duty. On the other hand if the duty actually paid by 100% E.O.U. on inputs cleared by them is less than the additional duty of customs payable on like goods the manufacturer shall be eligible only to the extent of actual duty paid ....