Custom, Excise & Service Tax Tribunal
Jk Tyre & Industries Ltd vs Commissioner Of Central Excise, ... on 13 June, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/787/2012-SM [Arising out of Order-in-Appeal No. 84/2012 dated 21/02/2012 passed by the Commissioner of Central Excise (Appeals), Mangalore.] JK TYRE & INDUSTRIES LTD VIKRANT TYRE PLANT-1, KRS ROAD, METAGALLI, MYSORE 570016 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax MYSORE S1-S2, VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Respondent(s)
Appearance:
Mr. Dattatray D. Bhat, Advocate For the appellant Mr. N. Jagadish, AR For the respondent Date of Hearing: 13/06/2017 Date of Decision: 13/06/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20910 / 2017 Per : S.S GARG The present appeal is directed against the impugned order dated 21.2.2012 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant.
2. Briefly the facts of the present case are that the appellants are manufacturers of excisable goods i.e., tyres, tubes and flaps falling under Chapter 40 of the Central Excise Tariff Act, 1985 (CETA, 1985) and were availing CENVAT credit of duty paid on inputs/ input services under CENVAT Credit Rules (CCR), 2004 and utilizing the same towards payment of duty. It appeared that the appellant had availed excess CENVAT credit of Rs.3,09,796/- on furnace oil supplied by M/s. BPCL, Devangothi Depot, during the period from 01/07 to 07/08 due to the reason that M/s. BPCL, Devangothi Depot had passed on excess CENVAT credit of the above said amount over and above the duty mentioned in the source invoices issued by M/s. BPCL to its depot. As the appellant had contravened the provisions of CCR, 2004, show-cause notice was issued by the adjudicating authority demanding the reversal of excess availed credit on furnace oil along with interest in terms of Rule 14 of CCR, read with Section 11AB and proposing to impose equivalent penalty in terms of Rule 15(2) of CCR read with Section 11AC of CEA, 1944. The adjudicating authority after following the principles of natural justice vide impugned OIO, disallowed the irregularly availed CENVAT credit and demanded the same from the appellant along with applicable interest and imposed penalty of Rs.3,09,796/- under Rule 15(2) of CENVAT Credit Rules (CCR), 2004. Aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner (A) on the ground that the inputs have been received in the factory and used in the manufacture of final product and therefore, the input CENVAT credit cannot be denied to the appellant. Further, the Order-in-Original is contrary to the Board Circular No.766/82/2003-CX dated 15.12.2003 wherein it has been clarified that on the issue of availment of credit by user manufacturer, no reversal can be made from the consignee until the bona fide nature of the consignee transaction is in dispute. After considering the submissions of the appellant, the Commissioner (A) rejected the appeal of the appellant and hence, the present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the Circular issued by the Board as well as various judgments passed by the Tribunal on the identical issue. He further submitted that the appellant has rightly availed the credit as per the invoices issued by M/s. BPCL and therefore, the Department cannot question the CENVAT credit availed by the appellant on the basis of valid invoices issued by the supplier. He further submitted that the entire demand is also time barred and no material has been brought on record to invoke extended period of limitation. He further submitted that the issue is covered in favour of the appellant by various decisions and he relied upon the following decisions:
* Rishab Industries vs. CCE: 2008 (84) RLT 120 (CESTAT-Mumbai) * CCE vs. Jyoti Ltd.: 2008 (223) ELT 171 (Guj.) * RS Industries vs. CCE: 2003 (153) ELT 114 (Tri.-Del.) * CCE vs. RS Industries: 2008 (228) ELT 347 (Del.) * Bhuwalka Steel Industries Ltd. vs. CCE: 2007 (212) ELT 63 (Tri.-Mum.) * CCE vs. SPIC Pharmaceutical Division: 2006 (199) ELT 686 (Tri.-Chen.) * Prachi Poly Products Ltd. vs. CCE: 2005 (186) ELT 100 (Tri.-Mum.) * Parsrampuria Synthetics Ltd. vs. CCE: 2005 (191) ELT 899 (Tri.-Del.) * Modern Malleables Ltd. vs. CCE: 2000 (122) ELT 270 (Tri.) He also submitted that the CBEC Circulars are binding on the department and for this submission, he relied upon the following decisions:
* Paper Products Ltd. vs. CCE: 1999 (112) ELT 765 (SC) * CCE vs. Dhiren Chemical Industries: 2002 (139) ELT 3 (SC) * Ranadey Micronutrients vs. CCE: 1996 (87) ELT 19 (SC)
5. On the other hand, the learned AR reiterated the findings of the impugned order.
6. After considering the submissions of both the parties and perusal of the material and the judgments relied upon by the appellant, I am of the view that the issue is squarely covered in favour of the appellant by various decisions cited supra, and therefore I allow the appeal of the appellant by setting aside the impugned order with consequential relief, if any.
(Operative portion of the Order was pronounced in Open Court on 13/06/2017.) S.S GARG JUDICIAL MEMBER rv 5