Custom, Excise & Service Tax Tribunal
M/S Hindustan Unilever Limited vs Cce &St, Bhopal on 29 November, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 29.11.2016 Excise Appeal Nos. 3095 & 3532 of 2012 (Arising out of order in appeal No.117/BPL/2012 dated 21.06.2012 & O-I-O No. 26/COMMR/CEX/ADJ/CHW/2012 dated 09.08.2012 passed by the Commissioner of Central Excise & Customs (Appeals) Bhopal). M/s Hindustan Unilever Limited Appellant Vs. CCE &ST, Bhopal Respondent
Appearance:
Ms. Padmawati Patil, Advocate for the appellant Shri Yogesh Agarwal, AR for the Respondent Coram:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Ashok K. Arya, Member (Technical) Final Order Nos. 55592 55593/2016 Per: Ashok Jindal:
The appeals filed by the appellant against the impugned order wherein cenvat credit on inputs have been denied.
2. Brief facts of the case are that the appellants are engaged in the manufacture of detergent bars, cakes and powder. The appellant was availing cenvat credit on the input, input service and capital goods. During the impugned period the appellant is procuring inputs from the market and sending the same directly to the job worker from suppliers place and availing cenvat credit. The invoices are showing the goods were consigned to the job workers premises on account of the appellant. For the imported goods, although the goods were received by the job worker on account of the appellant. The job worker sent job worked goods to the appellant which are used by the appellants for manufacture of final products which were cleared on payment of duty. In some cases although the name of the appellant is written on the invoices, but Chindwara where the appellant is located is missing. The Revenue is of the view that the goods never received in the factory of the appellant and therefore, appellant is not entitled to cenvat credit. In these set of facts, the show cause notices were issued and the matters were adjudicated which were resulted in denying the cenvat credit . Consequently, the demand of duty was confirmed alongwith interest and penalty was also imposed on the appellant. Against the said orders, the appellant is before us.
3. Ld. Counsel for the appellant submits that the appellant is sending goods directly to the job worker on appellants own account and after processing the goods by the job worker and after further processing, these goods have been sold by the appellant on payment of duty. As appellant has followed the procedure laid-down under Rule 4(5)(a) of the CCR, 2004, therefore, appellant is entitled to avail cenvat credit. The facts of sending the goods to the job worker and the receipt of job worked goods by the appellant are not in dispute. Therefore, the cenvat credit cannot be denied to the appellant in the light of the decision of this Tribunal in the case of Bharat Heavy Electricals Limited vs. CCE, Bhopal 2011 (274) ELT 359 (Tri. Del.) and in CCE, Bhopal vs. Procter & Gamble 2010 (258) ELT 268 (Tri. Del.).
4. On the other hand, ld. AR for the Revenue reiterated the findings in the impugned order.
5. Heard both the sides and considered the submissions.
6. On careful consideration of the submissions made by both the sides, we find that the facts that the goods have been sent directly to the job worker on the instruction of the appellant by the supplier or to the job workers premises from the port on account of the appellant and job worked goods have been received by the appellant after processing are not in dispute, therefore, we are of the view that as the goods have been received by the appellant after processing on job work, the cenvat credit cannot be denied to the appellant in the light of the decision of this Tribunal in the case of BHEL (supra) wherein this Tribunal observed as under:
7.1 Plain reading of the order of the Commissioner clearly indicates that the bill of entry was in the name of the appellant only. It did not mention the factory address instead mentioned the address of International Operations Division. This does not make the document being not in the name of the appellant. The appellant has produced the Stores Receipt Voucher (SRV) as evidence for receiving the material in the factory which has been duly noted by the Commissioner. It is pertinent to note that the appellants factory in Bhopal comes directly under the jurisdiction of Commissioner, Bhopal and, therefore, the finding that in the absence of endorsement in the bill of entry by the International Operations Division, it was not possible to ascertain as to whether the goods covered by the said bill of entry were received and used in the assessee factory cannot be appreciated.
7.2 As regards the material procured from Hindustan Copper Limited, the submissions of the appellant that they were sent directly to M/s Ken Electricals on behalf of BHEL, Bhopal who were undertaking job work for the appellant and received the processed material in terms of Notification No. 214/86 dated 25.03.86 has been duly noted by the Commissioner. Under these circumstances, the explanation that the appellant have taken constructive delivery of the inputs and instead of receiving it in their factory and then again sending to the job worker has directly sent it to the job worker deserves to be accepted. The fact that the job worker has processed the material and sent the intermediate goods manufactured using the inputs following Notification No. 214/86 has not been refuted. In the given facts and circumstances of the case, the transport of material directly to the job workers premises to avoid payment of extra period and same time, cannot lead to denial of credit.
Further, in the case of Protector & Gamble (supra) this Tribunal again examined the issue and observed as under:
5. In this case, I find that the invoices were issued in the name of M/s Standard Surfactants on account of M/s Protector and Gamble Home Products Ltd. M/s Standard Surfactants has not availed cenvat credit and after processing the goods, they sent the goods to the respondents. The respondent are rightly entitled to avail cenvat credit in this case. As the invoice clearly show that the goods have been supplied on account of respondent to M/s Standard Surfactants Ltd. and the said company has certified that they have not received the consignment, the claim of the respondents regarding the receipt of material and their use in their factory has to be accepted based on the documentary evidence produced by them. The Department has failed to prove that the material was not received in the premises of the respondent as claimed by them. The credit cannot be denied merely on the ground that the name of the consignee shown in the invoice is M/s Standard Surfactants Ltd. In the case of Swill Ltd. (supra), this Tribunal has held that when the invoice indicated their goods were on account of appellant company and some of which indicated that the supplies were meant for contractor. It is not disputed that the goods have not been received in the appellant factory and has not been utilised in putting put up the plant for manufacture of excisable goods by the appellant factory, cenvat credit cannot be denied. In this case also, there is no dispute that the goods have not been received in the factory of the respondent, the respondent cannot be denied cenvat credit. Accordingly, I do not find any merit in the appeal and the same is rejected.
7. In the light of the above decisions, it has not been disputed that job work goods received by the appellant, the cenvat credit cannot be denied to the appellant.
8. With these observations, we hold that the appellant has correctly availed the cenvat credit. Therefore, we set aside the impugned order and allow the appeal with consequential relief (Operative part of the order pronounced in the open Court).
(Ashok Jindal) Member (Judicial) (Ashok K. Arya) Member (Technical) Pant