Custom, Excise & Service Tax Tribunal
Ajinkya Enterprises vs Cce Pune Iii on 11 July, 2019
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
EXCISE APPEAL NO: 1679 of 2011
[Arising out of Order-in-Appeal No: PIII/RS/212/2011 dated 28th July 2011
passed by the Commissioner of Central Excise (Appeals), Pune - III.]
Ajinkya Enterprises ... Appellant
Plot No. 1 & 2, Gat No. 409, Village: Bhare
Tal: Mulshi, Dist: Pune - 412 108
versus
Commissioner of Central Excise ...Respondent
Pune - III ICE House 41-A Sasoon Road Pune 411 001 APPEARANCE:
Shri Shrikant Acharya, Advocate for the appellant Ms A S Parab, Assistant Commissioner (AR) for the respondent CORAM:
HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) HON'BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) FINAL ORDER NO: A/86224 / 2019 DATE OF HEARING: 25/04/2019 DATE OF DECISION: 11/07/2019 PER: C J MATHEW M/s. Ajinkya Enterprises is aggrieved by the denial of claim of rebate for ₹ 9,52,120/- pertaining to supplies made to a unit in a E/1679/2011 2 'special economic zone' between July 2008 and August 2008 after discharging liability of duties of excise. Admittedly, the appellant is a registered manufacturer of various products besides slitting of jumbo steel strips, cutting and slitting of HR CR coils and pickling them. They were issued with a show cause notice for denial of the claim for rebate on the ground that the activity does not amount to manufacture and, therefore, not being liable to duties of excise at the time of removal from the factory, could not seek rebate.
2. At the outset, Learned Authorised Representative contested the jurisdiction of the Tribunal to decide this matter which is covered by section 35EE of Central Excise Act, 1944. We take note that the grievance of the applicant is not one of mere denial of claim for rebate but the denial that their activity amounted to manufacture. While the acceptance or rejection of rebate claim, whether entire or partially, lies outside the jurisdiction of the Tribunal, the decision as to whether the process involved in the production of the goods on which rebate is sought amounts to manufacture, and thereby excisability, cannot vest with the Government of India. As the issue in dispute is very clear, so are we on our jurisdiction.
3. We have, heard the partner of the appellant and the Learned Authorised Representative at length.
4. We find that this issue was, though in relation of entitlement to E/1679/2011 3 CENVAT credit on the inputs and input service utilized by the appellant herein, once before adjudged by Tribunal for an earlier period, and the Tribunal in its decision, vide order no. A/491-497/11- EB/C-I dated 23rd June 2011, based on SAIL Bansal Service Centre Ltd v. Commissioner of Central Excise, Ranchi [2007 (220) ELT 520 (Tri-Kol.)], held that once the payment of duty has been accepted, there is no scope for denial of credit pertaining to inputs, input services or capital goods to the manufacturer. It is also seen that the activity of the manufacturer was once deemed to be excisable but had been withdrawn subsequently on 2nd March 2005 and it has been noted by the Tribunal, in the decision supra, that further clarifications had been sought by the appellant from the central excise authorities that was responded to in circular no. 927/17/2010-CE dated 24th June 2010. It is also noted that the appellant cleared the goods against form ARE-I which was required to be certified by the jurisdictional central excise authorities. There is no allegation that these processes was not complied with; indeed, receipt of the goods in special economic zone are also required to be certified so by endorsement in ARE-I. The appellant is a manufacturer of excisable goods and, in these circumstances, could certainly have entertained the bonafide belief that their activity did amount to manufacture and, hence, not barred from discharge of duty liability on clearances to special economic zone against which rebate, under rule 18 of Central Excise Rules, E/1679/2011 4 2001, was sought.
5. In view of the above circumstances, the orders of the lower authorities holding the goods thus exported to be not manufactured is patently incorrect. As the claim for rebate has been rejected solely on this ground without examining any other aspect that may be relevant for the acceptance, or denial, of the claim, we set aside the impugned order and direct the matter back to the original authority to decide on eligibility for rebate after taking into consideration our decision that the activity itself amounts to manufacture.
6. Appeal is accordingly disposed off.
(Order pronounced in the open court on 11/07/2019) (C J Mathew) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) */as300506051406