Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S Gkw Ltd on 1 October, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. III Appeal No. E/4053/05 (Arising out of Order-in-Appeal No. AT/450/M-III/2005 dated 29.8.2005 passed by the Commissioner of Central Excise (Appeals), Mumbai-II). For approval and signature: Honble Shri P.R. Chandrasekharan, 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 : Yes 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? ====================================================== Commissioner of Central Excise, Mumbai-III Appellant Vs. M/s GKW Ltd. Respondent Appearance: Shri Navneet, Addl. Commissioner (AR) for Appellant None for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) Date of Hearing: 01.10.2013 Date of Decision: 01.10.2013 ORDER NO. Per: Shri P.R. Chandrasekharan
Revenue is in appeal against Order-in-Appeal No. AT/450/M-III/2005 dated 29.8.2005 passed by the Commissioner of Central Excise (Appeals), Mumbai-II.
2. The respondent herein is M/s GKW Pvt. Ltd., LBS Marg, Bhandup. They received duty paid on Steel Wire and Brass Wire during the period Sept, 2003 to June, 2004 and utilized the same in the manufacture of steel screw, cotter pins, safety pins and brass wire etc. The Revenue was of the view that the duty on steel/brass wires have been wrongly paid during the impugned period and, therefore, the same cannot be considered as duty paid but should be considered only as deposit and, therefore, the appellant is not entitled for the credit of the duty paid on steel wire /brass wire and sought to deny the same. The original authority denied the CENVAT Credit amounting to Rs.6,07,187/- and Rs.4,15,142/- along with interest thereon and also imposed equivalent amount of penalty. The respondent preferred an appeal before the lower appellate authority. The lower appellate authority held that inasmuch as the supplier has paid the duty on the goods supplied and the respondent has borne the incidence of the said duty, he is entitled for the credit of the same under the Cenvat Credit Rules and, therefore, the excise authority having the jurisdiction over the recipient of inputs cannot reopen the classification adopted by the officer having jurisdiction over the input supplier as held by the Tribunal in the case of Kerala State Electronic Corpn. 1996 (84) ELT 44 (Tri), Trinetra Texturise Pvt. Ltd. 2004 (166) ELT 384 (Tri-Mum) and M/s Beta Chemicals vide Order No. A/87-89/wZB/2005/C-I dated 1.2.2005. Accordingly, the lower appellate authority allowed the appeal of the respondent. Aggrieved of the same, the Revenue is before me.
3. None appeared for the respondent.
4. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, submits that in the present case the process of drawing steel/brass wire from wire rods does not amount to manufacture and, therefore, the supplier of raw material of steel/brass wire has paid the duty incorrectly and, therefore the said payment cannot be considered as duty. He also relies on the decision of the Tribunal in the case of Technoweld Industries 2003 (155) EKT 209 (SC) and the Circular No. 720/36/2003-CX dated 29.5.2003 issued by the CBE&C clarifying that drawing of wire from wire rods would not amount to manufacture. Accordingly, he pleads that the impugned order be set aside and the appeal allowed.
5. I have carefully considered the submissions advanced by the Revenue.
5.1 It is true that in the case of Technoweld Industries (supra), the Honble Apex Court had held that the process of drawing wires from wire rods not amount to manufacture. The issue dealt in the said decision is only whether the process of drawing wire from wire rod amounts to manufacture or not. The said decision did not deal with the case relating to availment of credit of duty paid wrongly. Therefore, the ratio of the said decision has no application to the facts before me in the present case.
5.2 In the case before me, the issue is whether the credit can be denied even if the duty has been paid wrongly by the supplier of inputs. This Tribunal in a number of cases cited supra relied upon by the lower appellate authority has clearly held that the excise authorities having jurisdiction over the recipient of inputs cannot reopen the classification adopted by the officer having jurisdiction over the input supplier. In the present case, it is not the case of the Revenue that the excise authorities having jurisdiction over the input supplier has questioned the classification and held that the payment of duty was incorrect. If that be so, the authorities at the receivers end cannot question the classification or payment of duty and deny the CENVAT Credit in respect of the duty paid by the supplier of the goods and borne by the receiver.
6. Therefore, I do not find any merit in the appeal filed by the Revenue. Accordingly, the same is dismissed as devoid of merits.
(Dictated and pronounced in Court) (P.R. Chandrasekharan) Member (Technical) Vks/ 1