Custom, Excise & Service Tax Tribunal
Jolly Board Ltd vs Cce, Aurangabad on 30 November, 2017
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/85333/14
(Arising out Order-in- Appeal No. AV(119)/95/2013 dated 2504.2013 passed by the Commissioner of Central Excise (A), Aurangabad)
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Jolly Board Ltd.
Appellant
Vs.
CCE, Aurangabad
Respondent
Appearance:
Shri H.R. Shirsat, Consultant for the appellant Shri Deepak S.Chavan, Supdt.(AR) for the respondent CORAM:
Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) Date of hearing : 13.11.2017 Date of decision : 30.11.2017 O R D E R No: ..
Per: Ramesh Nair The issue involved is whether the cenvat credit is admissible on the input used in the exempted goods which has been exported.
2. Shri H.R. Shirsat, ld. Consultant appearing on behalf of the appellant submits that though the goods manufactured by them i.e. Bagasse Board is exempted by notification 6/2006 dated 01.03.2006 they are entitled for the cenvat credit for the reason that Bagasse Board have been exported. In case of export of goods, in terms of Rule 6(6)(5) the cenvat credit is admissible. He further submits that against the said credit on the input used in export of Bagasse Board they have been allowed refund claim under Rule 5 of Cenvat Credit Rules 2004, which has been accepted by the department and no appeal was filed. Therefore, the cenvat credit which was denied in the present case has already been refunded under Rule 5. Therefore, now no dispute can be raised as regards the admissibility of the cenvat credit on the ground that the final product exported is exempted. He submits that the issue is squarely covered by various judgements. He placed reliance on the following judgements:-
* CESTAT Order no. A/79-84/14/SMB/C-IV dated 06.01.2014 in appellants own case * Decision of Bombay High Court order in Central Excise Appeal no. 04 of 2014 dated 02.09.2016 * Drish Shoes Ltd. 2010 (254) ELT 417 (HP) * Repro India Ltd. 2009 (235) ELT 614
3. He further submitted that demand is clearly time barred as in one hand the department sanctioned the refund knowingly the availment of cenvat credit against the export of goods and in other hand they issued the demand of the cenvat credit for the period November 2009 to August 2012 whereas the show-cause notice was issued on 05.10.2012, therefore the demand is time barred as no suppression of fact is involved.
4. Shri Deepak S.Chavan, Supdt.(AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
5. We have carefully considered the submission made by both sides. We find that the issue involved is that whether the appellant is entitled for cenvat credit on the input and input services used in the manufacture of Bagasse Board cleared for export but exempted under notification 6/2006-CE. We find that the issue is no longer res integra as per the judgment of the Drish Shoes Ltd. (supra) and Repro India Ltd.(supra). The judgment of Drish Shoes Ltd. has been confirmed by the Apex court. Moreover against the very same cenvat credit availed by the appellant, the department has sanctioned the refund under rule 5 of the Cenvat Credit Rules, 2004. The order sanctioning refund has been accepted by the department. Rule 5 refund can only be sanctioned if the assessee is entitled for the cenvat credit. Therefore in one hand, the department has sanctioned the refund claim under Rule 5 and on the other hand, they are denying the cenvat credit which is contrary to their own stand.
6. Since the issue is already settled by the judgement cited above, and with the action of departments sanction of refund under Rule 5, the impugned order is not sustainable. Hence the same is set aside. Appeal is allowed.
(Pronounced in Court on ..............................) (Raju) Member (Technical) (Ramesh Nair) Member (Judicial) //SR
- 4 -
E/85333/14