Custom, Excise & Service Tax Tribunal
M/S. Big Bags International Pvt. Ltd vs Commissioner Of Central Excise And ... on 7 September, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/28083-28084/2013-SM [Arising out of Order-in-Appeal No. 515 & 516 /2013-CE dated 30.9.2013 passed by Commissioner of Central Excise, BANGALORE-I (Appeal) ] 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? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? M/s. Big Bags International Pvt. Ltd. No.61, Nadakerappa Industrial Estate, Andrahalli Main Road, Near Peenya II Stage, Viswaneedham Post, Bangalore 560 091. Appellant(s) Versus Commissioner of Central Excise and Service Tax Bangalore-II Commissionerate BANGALORE 560 001. KARNATAKA Respondent(s)
Appearance:
Shri B. N. Gururaj, Advocate For the Appellant Ms. Ezhilmathi, AR For the Respondent Date of Hearing: 02/09/2016 Date of Decision: 07/09/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20736-20737_/ 2016 Per : S.S GARG The appellant has filed two appeals against impugned order passed by the Commissioner in Order-in-Appeal dated 30.9.2013 vide which the Commissioner has rejected the appeal of the appellant and upheld the Order-in-Original. Since in both the appeals the issue involved is identical, therefore both the appeals are disposed of by a common order. The present appeal is being filed by M/s. Big Bag International Pvt. Ltd. and its earlier name was M/s. Big Bag (India) Pvt. Ltd.
2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of PP / FIBC sacks falling under Chapter 39 and Chapter 63 of Central Excise Tariff Act, 1985 and they are availing CENVAT credit on input capital goods and input services. The appellant has been importing raw materials without payment of customs duties under various advance authorisations issued to them under Foreign Trade Policy and has been using the same in the manufacture of export goods. However, in respect of some advance authorisation, the appellant was not able to fulfil the export obligation completely in respect of certain licences. For closure of such authorisation, the appellant had obtained redemption certificates from the DGFT, Bangalore for paying all the duties on the quantity of raw material imported but not used for discharging the export obligation. These duties were paid vide TR-6 challans. Since the duties paid were relatable to the original bills of entry, the appellant took CENVAT credit of additional duty of customs and special additional duty of customs on the basis of the said challans. The Revenue objected to the CENVAT credit based on TR-6 challans on the ground that the said document is not a valid document for taking CENVAT credit and thereafter a show-cause notice dated 14.12.2011 was issued for recovery of Rs.1,53,028/-, interest and for imposing penalty. The show-cause notice was confirmed by the Order-in-Original and the appeal filed against the same was rejected by the Commissioner (A). Hence the present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is contrary to the provisions of CENVAT Credit Rules, 2004 and has been passed ignoring the judicial precedent and is not sustainable in law. He further submitted that both the authorities below have failed to appreciate that explanation to Rule 9(i)(b) of the CENVAT Credit Rules, 2004 includes challan which is an eligible document for taking credit and the department has invoked a irrelevant Rule 9(i)(e) for denying the credit. He further submitted that in the appellants own case, Final Order No.22433/2014 the Division Bench of the Tribunal vide the order dated 30.12.2014 has allowed the CENVAT credit based on TR-6 Challan. The Division Bench in para 4 has observed as under:
4. We find the issue was considered by the Bangalore Bench of this Tribunal in the case of Essar Oil Ltd. vs. CCE, Rajkot: 2014 (303) E.L.T. 255 (Tri.-Ahmd.). It was heldt hat the differential duty paid under a challan subsequently and not on the bills of entry would be available as CENVAT credit to the assessee. By following the same, we set aside the impugned order and allow the appeal with consequential relief. Stay petition as also appeal gets disposed of. Since the issue is squarely covered in favour of the appellant vide order of this Tribunal dated 30.12.2014, I allow both the appeals of the appellant and set aside the impugned order with consequential relief, if any.
(Order was pronounced in open court on 07/09/2016.) S.S GARG JUDICIAL MEMBER rv 4