2025 (11) TMI 1544

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of Rs. 1,35,98,208/- during the period 01.02.2009 to 31.03.2012 in respect of CVD paid at the time of import and utilised the same towards duty paid on re-packed Peanut Butter, as also towards payment of SAD. The Department felt that the goods being cleared by them were unconditionally exempted by virtue of Rule 11 of Notification No. 03/2006-CE dated 01.03.2006, as amended, and therefore the appellant have deliberately taken the credit and utilized the same by paying excise duty at the time of clearance. It was also noticed by the Department that they have taken credit of Rs. 4,51,157/-, where the goods itself has not been utilized for manufacture or for that matter written off in their books of accounts. On adjudication, the Adjudicating....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... judgment of the Hon'ble Supreme Court in the case of CCE Vs Wood Craft Products Ltd., [1995 (77) ELT 23 (SC)], in support that the word and expression "similar" is expansive and not restrictive like "similar" and therefore some resemblance in the goods is to be deemed as similar and only a general likeness and resemblance is necessary. Peanut Butter and Margarine are both edible preparation which are similar in nature. His another alternative argument is that the entire exercise is revenue neutral as the final goods were removed on payment of excise duty and once the payment of excise duty has been accepted by the Department, in view of catena of judgments including the judgment in the case of Ajinkya Enterprises Vs CCE, Pune-III [2013 (6)....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... including the judgment of the Hon'ble Supreme Court in the case of Birla Corporation Ltd., Vs CCE [2005 (186) ELT 266 (SC)]. 3. In so far as the demand of Cenvat Credit on the value of inputs written off in the books of accounts, they have accepted the demand to the extent of non-receipt of inputs, however, they are arguing that since the remaining inputs were written off in the books of accounts, hence, the question of reversal of credit under Rule 3 (5B) of CCR 2004 does not arise. 4. Learned AR, apart from re-iterating the findings, inter alia, submits that Margarine and Peanut Butter cannot be considered as similar edible preparations in view of various differences in terms of its composition, end use etc. In so far as irregular ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f revenue neutrality as well as holding that the impugned goods were similar to Margarine and therefore clearly excluded from the exemption notification. However, he has upheld the demand of Cenvat Credit on inputs written off in terms of provisions under Rule 3 (5B) of CCR. We find that apparently, Department has not challenged this order and therefore, the view of the Commissioner (Appeals) has to be considered as the view of the Department. Therefore, when the Department itself has decided that demand is not sustainable in the given factual matrix, both on grounds of revenue neutrality as well as on account of its being similar edible preparation to Margarine, then now the demand raised on the similar issue cannot sustain to the extent o....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r and Margarine are similar edible preparations, therefore not exempted. 8. We find that the issue is not that of imposition of redemption fine and this ratio, as such, is not applicable in the present appeal. The imposition of redemption fine is a discretionary provision and may not have any binding precedence in so far manner of computation of same is concerned. However, when the issue is that of classification and entitlement of notification or otherwise, a decision given by the Commissioner (Appeals), which has not been contested by the Department, has to be taken into consideration by the Tribunal, unless any concrete reasons are cited by the Department as to why the said order has not been challenged. We do not find any such argume....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See; Medley Pharmaceuticals Limited v. Commissioner of Central Excise and Customs, Daman - (2011) 2 SCC 601 = 2011 (263) E.L.T. 641 (S.C.) and Commissioner of Central Excise, Nagpur v. Shree Baidyanath Ayurved Bhavan Limited - 2009 (12) SCC 419 = 2009 (237) E.L.T. 225 (S.C.)]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of "ice-cream" and thus, may require different standards for a goods to be marketed as "ice-cream". These provisions are for e....