Custom, Excise & Service Tax Tribunal
M/S. Hindusthan Cocacola Beverages ... vs Commissioner Of Central Excise, Patna on 3 March, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.EDM-766/04
&
Cross Objection No.CO-28/05
(Arising out of Order-in-Original No.09/M.P./Commissioner/2004 dated 30.08.2004 passed by the Commissioner of Central Excise, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Hindusthan Cocacola Beverages Pvt.Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Patna
Respondent (s)
Appearance:
Dr.Samir Chakraborty, Advocate for the Appellant (s) Shri B.B. Agarwal, Authorised Representative (Jt.CDR) for the Revenue CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri S.K. Gaule, Member(Technical) Date of Hearing:- 03.03.2010 Date of Pronouncement :- 03.03.2010 ORDER NO.
Per Shri S.S.Kang.
1. Heard both sides.
2. Appellant filed this Appeal against the impugned order. Order portion of the impugned order is reproduced below:-
I direct the notice, M/s. Hindusthan Coca Cola Beverages (P) Ltd., Patliputra, Patna to deposit an amount of Rs.11,76,25,967=44 (Rupees eleven crores, seventy six lacs, twenty five thousands, nine hundred sixty seven and paise forty four only) as SED under the proper head within three months from the receipts of this order & to take credit of equal amount in their PLA of BED and they can utilize the same towards payment of BE duty. However, in facts & circumstances of the case, there is no case at all either to impose penalty on any one, nor of demanding of interest nor of confiscations, nor any thing else.
3. The contention of Appellant is that a Show Cause Notice was issued under Section 11A of the Central Excise Act on the ground that Appellant had not paid Special Excise Duty for the period April 1999 to June 2003. After considering the reply of the Appellant the adjudicating authority in the impugned order come to a conclusion that the Appellant paid duty through TR-6 Challans showing as Basic Excise Duty. However, from that amount Special Excise Duty is also paid. Commissioners finding is that the entire exercise is revenue neutral. There is no fault on the part of the Appellant to evade payment of duty.
4. The contention of Appellant is that in the impugned order there is no demand confirmed under Section 11A of Central Excise Act and there is no prohibition under the Central Excise Act or Rules during the relevant period for payment of Special Excise Duty from the account of Basic Excise Duty. Appellant relied upon the Boards Circular dated 26.06.1989 to submit that the Board has clarified that the credit of specified duties can be taken on inputs and the same can be utilized for payment of specified duties on the final product. It is not necessary that credit of particular duty should be utilized for payment of that duty only. Credit of specified duties can be utilized for payment of any one of specified duties. The contention is that therefore the impugned order is not sustainable.
5. Revenue also relied upon the same Boards circular dated 26.06.1989 to submit that it is also mentioned in the Circular that credit as well as utilization thereof in respect of each of specified duties must be accounted for separately. This is necessary for the purpose of proper revenue accounting. The Revenue also relied upon the decision of the Tribunal in the case of Guala Closure (India) Pvt.Ltd. v. CCE, Daman - 2008 (228) ELT 39 whereby the Tribunal in a similar situation when Education Cess is being paid from the account of credit of Basic Excise Duty agreed with the suggestion of the assessee that the assessee will deposit the amount of Education Cess in the P.L.A. through TR-6 Challan and credit back the amount paid from the Basic Excise Duty account.
6. We find that in this case the only issue is whether the Special Excise Duty can be paid from the account of Basic Excise Duty. We find there is no prohibition under the Central Excise Act or Rules. The Revenue relied upon the decision of the Tribunal in the case of Guala Closure (India) Pvt.Ltd. v. CCE, Daman - 2008 (228) ELT 39 (supra). In that case we find that the order was passed in view of the concession made by the assessee. In the present case there is no demand confirmed under Section 11A of the Central Excise Act. We find that the duty in question has been paid through P.L.A.. The Commissioner of Central Excise in the impugned order held that it is a fact that amount of revenue involved in the said clearance has been parted away by the assessee and the same was deposited in the government exchequer. The assessee spent the required amount towards their payment of duty which are equal to the amount that was ultimately to be paid by them. By doing so they have neither gained anything nor the Department got any amount less than that was due. We find that there is no prohibition for payment of Special Excise Duty from Basic Excise Duty account therefore impugned order whereby the Commissioner has directed the Appellant to make deposit the amount in question as Special Excise Duty under the proper head and to take credit of equal amount through P.L.A. of Basic Excise Duty is set aside. Appeal is allowed. Cross Objection is also disposed of.
(Pronounced and dictated in the open court.) Sd/ sd/ (S.K. GAULE) (S.S.KANG) MEMBER(TECHNICAL) VICE PRESIDENT sm 4 Appeal No.EDM-766/04