Custom, Excise & Service Tax Tribunal
M/S.Vee Gee Industrial Enterprises ... vs Cce, Delhi-Iv on 24 March, 2014
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision: 24.03.2014
For Approval and Signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. Rakesh Kumar, Member (Technical)
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Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
Excise Stay Application No.56814/2013
In Appeal No.E/56340/2013-EX (DB)
(Arising out of Order-in-Appeal No.110/CE/APPEAL/DLH-IV/2012 dated 17.12.2012 passed by the Commissioner of Central Excise (Appeals), Faridabad).
M/s.Vee Gee Industrial Enterprises Pvt. Ltd. Appellants
Vs.
CCE, Delhi-IV Respondent
Appearance: Rep. by Shri K.K. Anand, Advocate for the appellant.
Rep. by Shri Yashpal Sharma, DR for the respondent.
Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Member (Technical) Final Order No.51722/2014 Dated:24.03.2014 Per Rakesh Kumar:
The appellant are manufacturers of motor vehicle parts. They receives moulds and dies from M/s. Maruti Udyog Limited on which M/s.Maruti Udyog Limited had paid the duty. The appellant took cenvat credit of the duty paid by M/s. Maruti Udyog Ltd. on the moulds and dies supplied by them. The Department subsequently found that the moulds and dies supplied by M/s. Maruti Udyog Limited were old and had been supplied to the appellant on a price much lower than the price of new moulds and dies, but still M/s.Maruti Udyog Limited paid the excise duty on their original value without any depreciation. The Department was of the view that the cenvat credit available to the appellant would be restricted only to the duty payable by M/s.Maruti Udyog Limited on the transaction value of the moulds and dies which was much lower than the value on which the duty had been paid. On this basis, after issue of show cause notice, the jurisdictional Addl. Commissioner vide order-in-original dated 27.4.2012 confirmed the cenvat credit demand of Rs.26,38,445/- against the appellant along with interest and besides this, imposed penalty of equal amount on them under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944. On appeal to the Commissioner (Appeals), the above order of the Addl. Commissioner was upheld vide order-in-appeal dated 17.12.2012 against which this appeal has been filed along with stay application.
2. The period of dispute in this case is from 4.4.2006 to 1.11.2007.
3. Heard both the sides. Though the matter was today listed for hearing of the stay application only after hearing the same for sometime, the Bench was of the view that since only a very short issue is involved, the matter can be heard for final disposal. Accordingly, with the consent of both the sides, the matter was heard for final disposal.
4. Shri K.K. Anand, Advocate, ld. Counsel for the appellant, pleaded that moulds and dies, in question, which are capital goods for manufacture of motor vehicle parts have been received by the appellant from M/s.Maruti Udyog Ltd., that M/s. Maruti Udyog Limited while supplying the moulds and dies by treating the same as old and used on a depreciated value, had paid duty on their original value and the appellant took cenvat credit of that duty only, that the department has not revised the assessment of duty at the end of M/s.Maruti Udyog Limited and hence, while considering the cenvat credit of the duty paid by M/s.Maruti Udyog Limited, the jurisdictional central excise authorities of the Appellant cannot seek review of the assessment of duty at the end of M/s.Maruti Udyog Limited, that in this regard, he relies upon the Apex Courts judgement in the case of CCE Vs. MDS Switchgear Ltd. reported in 2008 (229) ELT 485 (SC) and also in the case of Sarvesh Refractories (P) Ltd. reported in 2007 (218) ELT 488 (supr) and that in view of these submissions, the impugned order is not correct.
5. Shri Yashpal Sharma, ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner (Appeals).
6. We have considered the submissions from both the sides and perused the records.
7. The moulds and dies, in question, were supplied to the appellant by M/s. Maruti Udyog Limited, who at the time of clearance had paid duty on the same on their undepreciated values even though there is no dispute that moulds and dies supplied were the old and used ones and not new and the same had been supplied to the Appellant at the depreciated value. The point of dispute is as to whether the cenvat credit in respect of moulds and dies available to the appellant would be restricted only to the duty payable on the transaction value of the moulds and dies or whether they would be eligible for cenvat credit of the duty actually paid by M/s.Maruti Udyog Limited. We find that there is no evidence produced by the Department that the assessment of duty in respect of duty payable by M/s. Maruti Udyog Limited on the moulds and dies had been revised by the jurisdictional central excise authorities or that the excess excise duty paid by M/s. Maruti Udyog Limited has been refunded to them. The cenvat credit available to the appellant can be varied only if the duty paid by M/s.Maruti Udyog Limited had been varied, which is not the case here. In terms of the Apex Courts judgement in the case of MDS Switchgear Ltd. (supra), the recipient manufacturer who has received the inputs from a supplier is entitled to avail the cenvat credit of the duty paid by the supplier/manufacturer and the central excise authorities having jurisdiction over the recipient/manufacturer cannot review the assessment of duty at the end of the supplier/manufacturer. This judgement of the Apex Court in the case of MDS Switchgear Ltd. (supra) is squarely applicable to the facts of this case. The impugned order, therefore, is not sustainable. The same is set aside. The appeal and the stay application are allowed.
(Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) Ckp.
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