Custom, Excise & Service Tax Tribunal
Golden Cross Pharma Pvt Ltd vs Siliguri on 30 July, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Excise Appeal No. 75902 of 2015
And
Excise Cross Objection No. 75812 of 2015
(Arising out of Order-in-Original No.04/COMM/CE/SLG/15-16 dated 04/06/2015
passed by Commissioner of Customs, Central Excise & Service Tax, Siliguri)
M/s. Golden Cross Pharma Pvt. Ltd.
(Village Taza Block, Rorathang, Dist. East Sikkim, Sikkim-737132)
Appellant
VERSUS
Commr. of Central Excise, Siliguri
(C. R. Building, Haren Mukherjee Road, Hakim Para, Siliguri-734001)
Respondent
APPEARANCE :
Mr. Rahul Tangri & Ms. Payal Bharwani both Advocate for the Appellant Mr. K. Chowdhury, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER NO.76494/2024 Date of Hearing : 15 July 2024 Date of Decision: 30.07.2024 PER R. MURALIDHAR:
The appellant is manufacturer of medicaments falling under Chapter 30 of the Central Excise Tariff Act, 1985. They were also claiming the benefit of area-based exemption under Notification No. 20/2007-CE dated 25.04.2007. The appellants have utilized the Cenvat Credit available under Basic Excise Duty for payment of Education Cess and Secondary & Higher Education Cess (SHE Cess in short). On the ground that the appellants are prohibited from utilizing Cenvat Credit of BED for discharge of payment of Education Cess and SHE Cess, the Show Cause Notice was issued demanding Rs.
68,03,373/-. After due process, the Adjudicating Authority confirmed the demand. Being aggrieved, the appellant is before the Tribunal.
2Excise Appeal No. 75902 of 2015
2. The Learned Counsel appearing on behalf of the appellant submits that the issue is no more res integra. This Bench in the case of Godrej Consumer Products Ltd. & German Remedies Ltd. V. CCE & ST, Siliguri vide Final Order No. 76521-76522/2023 dated 29/08/2023 has held that the assessee is entitled to utilize Cenvat Credit of BED for payment of Education Cess and SHE Cess. He submits that earlier the issue was decided by Hon'ble Guwahati High Court in the case of UOI Vs. Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd.-2012 (7) TMI 902 (Guwahati High Court), which was relied upon by this Bench. Hence, the Learned Counsel submits that the appeal may be allowed on merits.
3. The Learned Counsel also submits that the Show Cause Notice has been issued on 04.07.2014 for the transactions which took place in 2011-12 to 2013-14 (upto December 2013). He submits that the debiting of BED for payment of Education Cess and SHEC was shown in the monthly Returns. The fact that the appellant is operating in terms of exemption notification was also known to the Department. Therefore, confirmed demand for the period April 2011 to May 2013 is hit by time bar.
4. The Learned AR reiterates the findings of the lower authority and justifies the confirmed demand.
5. Heard both sides and perused the Appeal papers and documentary evidence placed before us.
6. On going through the factual details, we find that the issue is no more res-integra. This Bench in the case of Godrej Consumer Products Ltd. & German Remedies Ltd. V. CCE & ST, Siliguri vide its Final Order No. 76521-76522/2023 dated 29/08/2023 had relied on the judgment of Hon'ble High Court of Guwahati in the case of Kamakhya Costmetics & Pharmaceutical Pvt. Ltd.-2015 (323) ELT 33 (Gau.), and has held as under:-
3Excise Appeal No. 75902 of 2015
12. Now, the jurisdictional High Court of Guwahati has an occasion to examine the issue in hand in the case of Kamakhya Cosmetics & Pharmaceutical Private Limited reported in 2015 (323) ELT 33 (Gau.), wherein the Hon'ble High Court has observed as under:-
"5. In the present case, the assessee utilized Cenvat credit of Basic Excise duty for paying Education Cess to which department raised objection. The Adjudicating authority held that Cenvat Credit of Basic Excise Duty could not be utilized for payment of Education Cess and accordingly deducted the amount from the refund due to the assesse.
6. The assessee preferred revision petition under Section 35EE of the Act which was allowed as follows :
"The appellant has utilized the Cenvat credit for payment of education Cess on final products in respect of which exemption under said notification is availed of and since Education Cess is also a Duty of excise, I hold that the appellant's action is correct and is in conformity with the Cenvat Credit Rules, 2004."
7. The above view was upheld by the Tribunal while dismissing appeal of the Revenue against the above order. It was held that there was no bar to utilize Cenvat credit of Basic Excise Duty for payment of Education Cess.
8. Since the view taken by the Tribunal is in conformity with the view taken by this Court referred to above, the question of law raised by the Revenue has to be decided against it and answered in the affirmative."
13. Therefore, following the decision of the Hon'ble Guwahati High Court, we hold that the appellants are entitled to utilise the cenvat credit of BED for payment of EC and SHEC.
14. Accordingly, the impugned orders are set aside and the appeals are allowed with consequential relief, if any.
[Emphasis supplied]
7. Since the issue in the present case is identical. Respectfully following the decision of the cited case law, we allow the appeal on merits.
8. We also find that the issue is that of interpretation which got clarified only after the issue reaching the Guwahati High Court, we hold that the Department has not made out any case of suppression 4 Excise Appeal No. 75902 of 2015 on the part of the Appellant. Therefore, the confirmed demand for the extended period stands set aside on account of time bar also.
9. The appeal is allowed both on account of merit as well as on account of limitation. The appellant would be eligible for consequential relief, if any, as per law.
10. Cross Objection also stands disposed off.
(Pronounced in the open court on 30.07.2024.) Sd/-
(R. Muralidhar) Member (Judicial) Sd/-
(Rajeev Tandon) Member (Technical) Pooja