TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 1524
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....011 @ 5% under Notification No. 02/2011-CE dated 01.03.2011 and the appellant was clearing the same after paying duty @ 5%. On the said capital goods the trial production of the finished goods in PET bottles started on 14.03.2011. The appellant have availed CENVAT Credit on such capital goods amounting to Rs. 5,01,57,998/- after successful trial production. The first commercial production of "Maaza pet 600 ml" bottle commenced on 29.03.2011 with clearance and closing balance of 2 cases and 5862 cases respectively. The appellant further sold 4 cases on 30.03.2011 and 10 cases on 31.03.2011. On 01.04.2011 the appellant have availed balance CENVAT credit on capital goods amounting to Rs. 3,58,43,451/- and also availed credit on the input services during March 2011 to February 2012 amount of Rs. 19,53,402/-. 1.2. First commercial production of MMPO PET 400 ml bottles was commenced on 18.08.2011 with closing balance of 1444 bottles. Thereafter, the first commercial production of MMNF pet 400 ML bottles commenced on 26.08.2011 with closing balance of 1469 bottles. The appellant were issued show cause notice dated 30.03.2012, alleging that the eligibility of cenvat credit on capital go....
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....s Judgment which is beyond the scope of remand order. Therefore, the order is not legal and proper and the same deserves to be set aside. He placed reliance on the Hon'ble High Court of Madras judgment in case of Kaleesuwari Refinery Pvt Ltd Vs Cestat, Chennai [2016 (340) ELT 632 Madras] and also on the following judgments: ● Commissioner of Central Excise, Nagpur Vs. Ballarpur Industries Limited, 2007 (215) ELT 489 SC. ● Commissioner of Central Excise Vs Gas Authority of India Ltd [ 2008 (232 ) ELT 7 SC. 3. On the other hand Shri Tara Prakash, learned Deputy Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He further submits that in view of the following Judgments the appellant is not entitled for CENVAT Credit on capital good :- ● GRASIM INDUSTRIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, TRICHY 2004 (176) E.L.T. 265 (Tri. - Chennai) ● SPENTA INTERNATIONAL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, THANE 2007 (216) E.L.T. 133 (Tri. - LB) ● BINANI CEMENT LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II 2002 (143) E.L.T. 577 (Tri. - Del.) ....
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....1AC of Central Excise Act, 1944 and Penalty of Rs. 1 Lakh was also imposed on Shri Amit Radheshyam Gupta, Zonal Finance Head. Aggrieved by the impugned order dated 21.03.2013, present Appeals have been filed. 3. Shri Vikaram Nankani, Learned Senior Counsel and Shri Hardik Modh, Learned Counsel appeared for the appellant. Shri Vikram Nanakani submits that appellant had received the capital goods i.e. Parts, Components and sub sets of the new 600 BPM Pet Bottling Line during the period 13.10.2011 to 28.02.2011. The said Capital goods was purchased by the Appellant for utilization of the same in manufacturing of final product i.e 'maaza". Installation of the machinery and trial run production were completed during the period 14.03.2011 and commenced commercial production from 29.03.2011. Therefore the Appellant had rightly availed the Cenvat Credit in the month of March 2011 in terms of Rule 4(2)(b) read with Rule 2(a) and Rule 6(4) of the said Rules. Upon perusal of the provisions of CCR, 2004 it is clear that the main condition for eligibility of Cenvat Credit on Capital Goods are being used in manufacture of dutiable final products. 3.1. He submits that the de....
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....anufactured by the Appellant became dutiable with effect from 01.03.2011 and the said capital goods were used in manufacture of final products during the same financial year, conditions provided to avail Cenvat Credit has been complied with, He also submits that amendment introduced by way of substitution in Rule 6(4) applies retrospectively. 4. On other hand Shri T.G. Rathod, Learned Additional Commissioner (AR) defended the impugned order by reiterating the findings of Commissioner and pleaded that Cenvat Credit of the duty paid on capital goods can be allowed only when on the date of receipts of such capital goods, the final product to be manufactured is dutiable. Revenue relles upon the following decisions: ● 2016(332) ELT 831(Tri, Bang) Andhra Polymers Pvt. Ltd Vs. CCE Hyderabad -II ● 2016(341) ELT 351 (Tri-Del) - Ankit Roofings Pvt. Ltd. Vs CCE, Jaipur ● 2003(155) ELT 481(Tri-Del)-CCE, Indore Vs Surya Roshni Ltd. ● 2003(158)ELT A273(SC) - Surya Roshni Ltd. Vs Commissioner ● 2007(216)ELT133(Tri-LB) Spenta International Ltd. Vs CCE Thane ● 2012(286)ELT639 (Tri-Ahmd)-CCE, Surat Vs ....
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....h the capital goods were received during the period 13.10.2010 to 28.02.2011 but as per submission of the appellant the trial production on said capital goods for manufacture of goods namely "Maaza" was undertaken on 14.03.2011 and commercial production of the said goods was commenced on 29.03.2011 with this fact it clear that since this machine was not used prior to 14.03.2011 for manufacture of any goods, it cannot be said that the said machine was used exclusively for manufacture of exempted goods. It is the contention in the show cause notice as well as in the impugned order that when the capital goods in question was received, the appellant was engaged in the manufacture of exempted goods however it is not clear whether the said capital goods were used in the manufacture of exempted goods. 5.1. As per our view even if the goods per se were exempted during the receipt and installation of the capital goods but if the said capital goods were not put to use for manufacture of any exempted goods it cannot be said that the said capital goods were used exclusively for manufacture of exempted goods in terms of Rule 6(4) of Cenvat Credit Rules, 2004. The revenue has heavily re....
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....penalty of Rs. 1 lakh in terms of Rule 26 of Central Excise Rules, 2002. We find that the issue involved is of Interpretation of Cenvat Credit Rules, 2004 hence there is no malafide involved. Therefore, in our considered view, the personal penalty in this case cannot be imposed on the employee of the appellant's company. 6. Accordingly, we set aside the penalty imposed on Shri Amit Radheshyam Gupta, Zonal Finance Head of the Company. The Appeal No. (E/11691)/2013 is therefore allowed. Appeal No. (E/11692)/2013 filed by M/s Hindustan Coca Cola Beverages Ltd is allowed by way of remand to the adjudicating authority." From the above order it can be seen that the legal issue that in given case whether the date of eligibility of CENVAT Credit has to be reckoned on the basis of date of receipt of capital goods or the date of commencement of production as has been observed by the Tribunal is absolutely clear that the eligibility of credit on capital goods has to be taken as on date of start of production, particularly for the reason that since provision of Rule 6 (4) provides the relevant date related to manufacture of finished goods either exempted or dutiable therefore, ....