Custom, Excise & Service Tax Tribunal
Flint Group India Pvt. Ltd vs Commissioner Of Central Excise on 17 August, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/1029/2012-SM [Arising out of Order-in-Appeal No. 02/2012 dated 12.01.2012 passed by the Commissioner of Central Excise, Bangalore] For approval and signature: HON'BLE SHRI S.S GARG, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Flint Group India Pvt. Ltd. No. 47-D, KIADB Industrial Area Bommasandra, Hosur Road Anekal Taluk Bangalore 560 099 Appellant(s) Versus Commissioner of Central Excise Bangalore I Commissionerate P.B. No. 5400, C.R. Building, Queens Road, Bangalore 560 001 Respondent(s)
Appearance:
Shri Pakshi Rajan, AR For the Appellant Smt Preetha, Advocate 505-508, North Block, Brigade Plaza, 71/1, Subedar Chatram Road, Anandrao Circle, Bangalore 560 009 For the Respondent Date of Hearing: 04/05/2016 Date of Decision: /08/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. / 2016 Per: S.S GARG The present appeal has been directed against the Order-in-Appeal No. 2/2012 dated 12.01.2012 passed by Commissioner (Appeals) Bangalore rejecting the appeal of the appellant by upholding the Order-in-Original thereby confirming the cenvat credit demand of Rs. 1,32,693/- (Rupees One Lakh Thirty Two Thousand Six Hundred and Ninety Three only). Briefly the facts of the present case are that the appellants are engaged in the manufacture of Printing Ink, Concentrates and Intermediaries, Paper Coating Varnish, Thinner/Reducer and Additives falling under Chapter 29, 32 and 38 of the Central Excise Tariff Act, 1985 and they are availing cenvat credit of duty paid on inputs and capital goods. During the period from August 2008 to June 2009, appellants procured certain inputs from one of their unit viz., M/s. Flint Group India Pvt. Ltd., Hosur which is a 100% Export Oriented unit. The 100% unit clears the goods to the appellant on payment of duty in terms of Notification No. 23/2003-CE dated 31.03.2003 and the appellant availed the credit of duties paid by the 100% EOU. The appellant on the basis of the duty paid invoices availed cenvat credit on the following duty elements:
(i) Countervailing duty (hereinafter referred to as CVD) @ 16% or 14%, as the case may be;
(ii) Education Cess @2% on CVD;
(iii) Secondary & Higher Education Cess @1% on CVD; and
(iv) Special Additional Duty of Customs @4%.
Thereafter the appellants were issued a letter dated 13.07.2009 by the Superintendent of Central Excise, Bommasandra Branch wherein they have been asked to furnish the details of credit taken on inputs procured from 100% EOU for the period August 2008 to May 2009 and in response to which the appellant vide letter dated 16.07.2009 cleared the details of the credit availed on inputs procured from 100% EOU. In this factual background appellant was issued a show-cause notice dated 28.08.2009 proposing to demand and recover an amount of Rs. 1,32,693/- (Rupees One Lakh Thirty Two Thousand Six Hundred and Ninety Three only) being the cenvat credit availed by the appellants during the period from August 2008 to June 2009 under Section 11A of the Central Excise Act 1944 read with Rule 14 of the Cenvat Credit Rules, 2004. The show-cause notice also proposed to demand interest under Section 11AB of the Act and to impose penalty under Section 11AC of the Act. The appellant filed a detailed reply to the show-cause notice and the Assistant Commissioner vide his order dated 30.06.2010 confirmed the demand along with interest and penalty. Aggrieved by the said order, the appellant filed the said appeal before the Commissioner (Appeals) and the Commissioner (Appeals) by Order-in-Appeal dated 12.01.2012 rejected the appeal by upholding the order of the Assistant Commissioner. Aggrieved by the impugned order, the appellant is before this Tribunal.
2. Heard both the parties and perused the records.
3. The learned counsel for the appellant submitted that the impugned order has been passed without appreciating the factual and legal position and misconstruing the formula prescribed under Rule 3(7) of Cenvat Credit Rules 2004 and therefore is not sustainable in law. He further submitted that the issue whether the appellant is entitled to avail credit of the education cess and special additional duty is settled in favour of the appellant by the decisions of this Tribunal in the case of Emcure Pharmaceuticals Ltd. V. CCE, Pune 2008 (225) E.L.T. 513 (Tri.-Mum.) wherein the Tribunal allowed the appeal of the assessee by holding that the respondent can avail the cenvat credit of education cess of the goods supplied to them by 100% EOU and the restriction imposed under Rule 3(7)(a) is not applicable. Similar view is fortified by the decision of the Tribunal in the case of Shreya Pets Pvt. Ltd. Vs. CCE, Hyderabad IV reported in 2009 (240) E.L.T. 408 (Tri.-Bang.) wherein the Tribunal following the decision of Emcure Pharmaceuticals (supra) has held that the assessee is entitled to avail 100% credit of education cess on the goods supplied to them by a 100% EOU. The decision in the case of Emcure Pharmaceuticals was also followed by the Tribunal in the case of CCE, Daman Vs. PVN Fabrics 2013 (289) E.L.T. 327 (Tri.-Ahmd.) as also in the case of Jai Corporation Ltd. Vs. CCE, Vapi 2015 (317) E.L.T. 489 (Tri.-Ahmd.). Further I find that on identical issue for the earlier period, in the appellants own case, this Tribunal vide its Final Order No. 21211/2015 dated 26.05.2015 allowed the appeal relying on the decisions of the Tribunal cited supra.
4. Respectfully following the precedent in the above cases, I allow the appeal of the appellant by setting aside the impugned order with consequential relief, if any, to the appellant.
(Order pronounced in open court on )
(S.S GARG)
JUDICIAL MEMBER
iss