Custom, Excise & Service Tax Tribunal
M/S. Cipla Limited vs Commissioner Of Central Excise, ... on 23 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/3437/2004-Mum. (Arising out of Order-in-Appeal No. AT/M-III/24/2004 dt. 24.08.2004 passed by the Commissioner of Central Excise (Appeals), Mumbai-III) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K.Jain, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
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CESTAT (Procedure) Rules, 1982?
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in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
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============================================================= M/s. Cipla Limited :
Appellant VS Commissioner of Central Excise, Mumbai-III :
Respondent Appearance Shri Rajesh Oswal, C.A. for Appellant Shri Ahibaran, Additional Commissioner (A.R) for respondent CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 23/01/2014
Date of decision : 23/01/2014
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Appellant filed this appeal against the order-in-appeal passed by the Commissioner of Central Excise (Appeals), Mumbai-II.
3. The brief facts of the case are that appellants are engaged in the manufacture of Anti HIV formulations and were working under the Cenvat Credit Scheme. The appellants were availing credit in respect of the duty paid inputs used in the manufacture of excisable goods w.e.f.1.3.2002 vide Notification No. 6/2002-CE dt. 1.3.2002. The Anti HIV formulations were exempted from payment of Central Excise duty. The appellants opted for the benefit of notification and reversed the credit by paying through PLA in respect of the inputs contained in the finished goods lying in stock. Subsequently, appellant filed refund claim of the amount which was reversed and paid through PLA. On the ground that appellants were not required to reverse the credit which has been already utilized on payment of duty.
4. The adjudicating authority rejected the refund claim and Commissioner (Appeals) upheld the adjudication order.
5. The contention of the appellant is that as the credit has been rightly availed and rightly utilized on payment of duty. Therefore, the reversal of credit availed on inputs is not to be reversed at the time of availing exemption notification and relying upon the following decisions of the Honble High Courts:
(i) Commissioner of Central Excise Vs. HMT (TD) Ltd.
2010-TIOL-316-HC-P&H-CX
(ii) Ranbaxy Laboratories Ltd. Vs. Commissioner of C. Excise, Chandigarh 2012 (279) ELT 194 (H.P.)
(iii) Commissioner of C. Ex., Bangalore-II CE Vs. Tafe Ltd. (Tractor Division) 2011 (268) ELT 49 (Kar.) The contention is that the Honble High Court upheld the decision of the Tribunal whereby it has been held that at the time of opting for exemption the credit which has been already utilized need not be reversed. The contention is that the refund claim was rejected on merits that appellants were required to reverse the credit. In respect of the credit of duty paid on inputs contained in the finished goods lying in stock and this view is contrary to the above mentioned decisions of the Honble High Court.
6. Revenue relied upon the Larger Bench decision of the Tribunal in the case of Steel Strips Vs. Commissioner of Central Excise, Luydhiana reported in 2011 (269) ELT 257 (Tri.-LB) and in the case of Khanbhai Esoofbhai Vs. Collector of Central Excise, Calcutta reported in 1999 (107) ELT 557 to submit that refund of credit is not admissible.
7. We find that the claim of the appellant was rejected on merits by the lower authorities on the ground that the appellants required to reverse the credit of duty paid on inputs contained in the finished products lying in stock on the date appellant opted for exemption notification. Appellant relied upon the decision of the Honble High Court in support of their claim. The Honble Punjab and Haryana High Court in the case of CCE Vs. HMT (TD) Ltd. (supra) held in favour of the manufacturer. In view of the above, we find that the matter requires reconsideration by the adjudicating authority afresh the adjudication authority will decide afresh the claim of the appellant. The matter is remanded to the adjudicating authority for denovo adjudication, keeping all issues open including the issue of unjust enrichment. The appeal is disposed of by way of remand.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
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