Custom, Excise & Service Tax Tribunal
M/S. Wipro Enterprises Limited vs Commissioner Of Central Excise, ... on 16 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/20317/2015-SM [Arising out of Order-in-Appeal No.705/2014-CE dated 19/11/2014 passed by Commissioner of Central Excise, BANGALORE-II (Appeal).] M/s. Wipro Enterprises Limited (consumer Care & Lighting), (Formerly Known as M/s Wipro Ltd.,) Consumer Care & Lighting, Plot No.4, Antharasanhalli Industrial Area, Tumkur BANGALORE 572 106. KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs Bangalore-II PB 5400 CR BUIDING, QUEENS ROAD, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. SURESH ASTEKAR ADVOCATE NO.22, 1ST MAIN ROAD, 1ST CROSS, VIDHANA SOUDHA LAYOUT, LAGGERE, BANGALORE - 560058 KARNATAKA For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 16/12/2016 Date of Decision: 16/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21430 / 2016 Per : S.S GARG The present appeal is directed against the impugned order dated 19.11.2014 passed by the Commissioner (A) whereby he rejected the appeal of the appellant and confirmed the Order-in-Original.
2. Briefly the facts of the case are that the appellant is engaged in the manufacture of soaps and soap noodles falling under Chapter Subheading 3401 11 90 and 3401 19 19 of the First Schedule of CETA, 1985. The appellants are part of Wipro Ltd. which has other factories engaged in the manufacture of soaps located at Amalner in Maharashtra, at Haridwar in Uttarakhand and at Baddi in Himachal Pradesh. In the month of May 2008 to July 2008, the Amalner factory of the appellant imported certain quantities of lauric acid which is a raw material for manufacture of soaps vide Bills of Entry No.843514 dated 26.5.2008 and No.908673 dated 11.7.2008. Part of the imported lauric acid was diverted to their sister unit at Tumkur i.e., the appellant herein. Since the Bills of Entry were filed in the name of Amalner unit, the original Bills of Entry were retained at the Amalner factory. This fact of diversion of certain quantities of imported raw materials was intimated by the Amalner factory to their jurisdictional Superintendent that the proportionate credit will be availed by the respective factories. Since the inputs were received by the appellant in their factory and were used for manufacture of excisable goods, the appellant took CENVAT credit in respect of the same in terms of CCR, 2004. The audit wing of the Department while conducting the audit raised the objection that the appellant have availed CENVAT credit in respect of imported raw material on the basis of photocopy of the bills of entry without producing original copy of bill of entry and without endorsement and hence the CENVAT credit is inadmissible. On these allegations, a show-cause notice proposed to demand CENVAT credit was issued to the appellant. After hearing the appellant, the original authority confirmed the demand along with interest and penalties. Aggrieved by the said order, appellant filed appeal before the Commissioner (A), who rejected the appeal of the appellant. Hence, the present appeal.
3. Heard both the parties and perused the records.
4. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the provisions of law as well as the judgments cited by the appellant in support of their submissions. He further submitted that the impugned order has been passed by the lower authorities inspite of production of original bill of entry. He also submitted that the Department does not dispute that the raw material was not indeed received at the factory at Tumkur and was used in the manufacture of excisable goods. It is also not in dispute that the appellant had duly informed the Central Excise officers having jurisdiction over the factories at Amalner as well as at Tumkur that the imported raw materials would be distributed to both the factories and proportionate CENVAT credit only would be availed at the respective factories. He further submitted that the appellant produced the original bill of entry before the adjudicating authority as well as the Commissioner (A), but both the authorities ignored the same and confirmed the demand on hyper technical ground. He further submitted that the bill of entry is in the name of the appellant i.e., Wipro Ltd. and once the bill of entry is in the name of the appellant, even if the address indicated is of the other factory of the same company, the CENVAT credit cannot be denied as long as the receipt of materials in the factory of manufacture and its usage is not doubted. He further submitted that it is a well settled law that CENVAT credit cannot be denied if the invoice is addressed to the other unit of the same manufacturer. In support of his submission, he relied upon the following authorities.
a) Prima Papers & Engineering Pvt. Ltd. vs. CCE, Pune-I: 2014 (314) ELT 697 (Tri.-Mumbai)
b) EEI Industries Ltd. vs. CCE, Bhopal: 2013 (287) ELT 475 (Tri.-Del.)
c) BHEL vs. CCE, Bhopal: 2011 (274) ELT 359 (Tri.-Del.)
d) Gujarat Heavy Chemicals Ltd. vs. CCE, Rajkot: 2005 (247) ELT 808 (Tri.-Ahmd.)
e) CCE, Salem vs. Chemplast Sanmar Ltd.: 2007 (208) ELT 208 (Tri.-Chennai) 4.1 He further submitted that it is also a settled law that CENVAT credit can be availed on photocopies of bills of entry. For this, he relied upon the following authorities:
a) Umedica Laboratories Pvt. Ltd. vs. CCE, Vapi: 2015 (327) ELT 192 (Tri.-Ahmd.)
b) CCE, Vapi vs. Mehta HWA FUH Plastic Pvt. Ltd. : 2012 (285) ELT 253 (Tri.-Ahmd.)
c) Controls & Drives (P) Ltd. vs. CCE, Coimbatore: 2008 (222) ELT 470 (Tri.-Chennai)
d) CCE, Kolhapur vs. Shah Precicast P. Ltd.: 2011 (269) ELT 407 (Tri.-Mumbai)
e) CCE & ST, Meerut-II vs. Century Pulp Paper: 2015 (322) ELT 746 (Tri.-Del.)
f) Chloride Alloys India Ltd. vs. CCE, Bangalore-I: 2015 (321) ELT 265 (Tri.-Bang.)
g) CCE, Nagpur vs. ACC Ltd.: 2015 (315) ELT 111 (Tri.-Mum.)
h) Sona Koyo Steering Systems Ltd. vs. CCE, Delhi-III: 2013 (296) ELT 481 (Tri.-Del.)
i) Tecumseh Products India Pvt. Ltd. vs. CCE, Hyderabad-IV: 2008 (221) ELT 129 (Tri.-Bang.)
5. On the other hand, the learned AR reiterated the findings of the impugned order.
6. After considering the submission of both the parties and perusal of the records as well as the judgments cited at bar, I am of the considered opinion that the ratios of the decisions cited supra are squarely applicable in the facts of the present case and therefore, the impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant with consequential relief, if any.
(Operative portion of the Order was pronounced in Open Court on 16/12/2016.) S.S GARG JUDICIAL MEMBER rv 4