TaxTMI 
TaxTMI 
2024 (12) TMI 668
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....ormed the appellants, vide Letter dated 30.04.2004 that the judgment of CESTAT in the case of M/s Pitambar Coated Paper Ltd. (supra) was not accepted by the Department and was challenged before the Hon'ble Apex Court and that the appellants should continue to pay duty on the clearances; in the interim period, the appellant paid duty on a few clearances, allegedly at the instance of the officers; the Revenue issued periodical Show Cause Notices to the appellants demanding the duty not paid on certain clearances; the Show Cause Notices issued were placed in call book pending the decision by the Hon'ble Apex Court dismissed the appeal filed by the Department and decided the issue in favour of the appellants - 2015 (319) ELT 357 (SC); subsequently, all the fourteen Show Cause Notices were adjudicated vide the impugned order dated 29.01.2016. 2. Shri Naveen Bindal, learned Counsel for the appellant, submits that the demands have been raised demanding duty on account of short payment of duty, which has been paid by utilizing CENVAT credit, of input used in the finished goods cleared without payment of duty, which would have been paid through PLA; as the Hon'ble Apex Court has decided th....
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....ntended purposes. He relies on the following cases: * Commissioner of C. Ex. Jaipur v. Pitamber Coated Paper Ltd. - 2003 (157) ELT 297 (Tri-Del.) upheld by Hon'ble Supreme Court -2015 (319) ELT 357 (SC) * Page Industries Ltd. v. Commissioner of C. Ex. & ST, Bangalore-III - 2016 (42) STR 70 (Tri-Bang.) * Commr. of C. Ex. Chandigarh v. Nahar Industrial Enterprises Ltd. - 2012 (25) STR 128 (P&H) * Tally Solutions Pvt. Ltd. v. Commissioner of C. Ex. Bangalore- 2020 (41) GTL 520 (Tri-Bang.) * Commissioner of Central Excise, Nashik v. Graphite India Ltd. - 2017 (3) GSTL (Tri- Mumbai) * Commissioner of Central Excise v. Gas Authority of India Ltd. - 2008 (322) ELT 7 (SC) * Precision Rubber Industries Pvt. Ltd. v. Commissioner of C. Ex. Mumbai - 2016 (334) ELT 577 (SC) * Syndicate Bank v. Commissioner of Central Excise, Mangalore - 2022 (58) GSTL 440 (Tri-Bang.) * Rawmin Mining and Indus Ltd. v. Commr. of C. Ex., Bahvnagar-I - 2009 (13) STR 269 (Tri-Ahmd.) * C.N.S. Comnet Solution Pvt. Ltd. v. Commr. of C. Ex & ST., Gurgaon-I - 2021 (51) GSTL 213 (Tri- Chan.) * Shree Krishna Paper Mills & Ind Ltd. v. C.C.E. & S.T., Gurgaon - 2019 (365) ELT 594 (Tri-Chan.) * Commis....
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....n the appellants were insisted upon to pay duty on the final products cleared by them, they have utilized the CENVAT credit and pay duty in cash as well as through credit; there is no one-to-one co-relation as far as the credit is concerned and the Department at no point of time has contested the availment of credit, payment through CENVAT credit was proper and legal; without disputing the availment of credit, the Show Cause Notice seeks to deny the CENVAT credit availed by the appellants and demands that whatever duty was paid through CENVAT credit should be now paid in cash. 7. The appellants strongly object the contention of the Show Cause Notice and impugned order and submits that once the product is held to be non-dutiable, payment of duty through credit or in cash is immaterial; the Department having not questioned the availment of CENVAT credit cannot question the utilization of the same for payment of duty on a final product which is otherwise held not to be liable to duty. We find that the Show Cause notice dated 27.01.2005 calls upon the appellant to show cause as to why: (1) Central Excise duty amounting to Rs. 5,23,36,648/- for clearance of above-mentioned excisable ....
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....een correctly and lawfully taken and there is also no allegation in this regard in the show cause notices. The details of CENVAT credit taken and utilized for payment of duty have been verified by Central Excise Officers and audit teams from time to time. We have also furnished monthly returns regularly mentioning the CENVAT credit taken and utilized. The law is well settled that when the CENVAT credit has been lawfully taken, it can be utilized for payment of duty. It is pertinent that the duty on the goods have been paid on the directions of the department, although the same was not payable as there was no manufacturing process involved. It is pertinent that we have submitted letter dated 25.12.2003 stating that the process of coating of uncoated writing and printing paper does not amount to manufacture in light of CESTAT order in Pitamber Coated paper Ltd. case, which as a judicial discipline was binding until and unless the same is stayed or reversed. The department has also filed appeal in the Hon'ble Supreme Court but the same was not stayed. Despite of the clear and binding legal status, the department continued issuing show cause notices. The appeal filed by the depar....
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....or by CENVAT credit. Demanding back the duty paid through credit would amount to defiance of the Hon'ble Supreme Court's Ruling that the process undertaken by the appellants does not amount to manufacture. It is a fact that the appellants have cleared some of the consignments on payment of duty and some without payment of duty. As long as the appellants have manufactured and cleared goods on payment of duty, the appellants are eligible to avail CENVAT credit in terms of Rule 3 of CENVAT Credit Rules, 2004. We find that the Show Cause Notice does not refer to Rule 14 of CENVAT Credit Rules and does not even speak the language of the Rule that such and such amount of credit is not admissible to the appellants. In view of the same, we find that the impugned order has traversed beyond the Show Cause Notice. We find that Hon'ble Supreme Court made it categorically clear in the case of Ballarpur Industries Ltd. - 2007 (215) E.L.T. 489 (S.C.)and in the case of M/s Gas Authority of India Ltd.- 2008 (232) ELT 7 (SC) that a show cause notice constitutes the foundation on which the demand made by the Department could stand or fall. Such an impugned order which finds no basis in the Show Cause....