Custom, Excise & Service Tax Tribunal
Cce & Cst, Rohtak vs Gupta Tobacco Company on 13 August, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court No.III
Appeal No. E/50012/2014-Ex-SM
(Arising out of OIA No.392/SVS/RTK/2013 dt.5.8.2013 passed by CCE(A),Delhi-III, Gurgaon)
Date of Hearing: 30.07.2015
Date of Order:13.08.2015
For approval & Signature:
Honble Smt.Sulekha Beevi C.S., Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
CCE & CST, Rohtak Appellant
Vs.
Gupta Tobacco Company Respondent
Appearance:
Present for the Appellant: Shri R.K.Gupta, DR Present for the Respondent: Shri Ashwani Sharma, Advocate Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial) Final Order No.52548/2015 Per: Sulekha Beevi C.S. Revenue has filed the appeal challenging the impugned order.
2. The facts in brief are as under:
2.1 The respondents, M/s.Gupta Tobacco Co. was supplied goods by M/s.Packotech Industries who were engaged in manufacture of flexible laminated metalized film and flexible laminated pouches. In the course of audit of M/s.Packotech Industries, it was observed that the process of laminaton carried out by them did not amount to manufacture and that no duty was leviable. M/s.Packotech had thus not only wrongly paid duty but also passed on the same to the respondents who availed cenvat credit on the duty levied on raw materials supplied by M/s.Packotech. A show cause notice was issued to the respondent which was finalized in the order which confirmed the duty demand with equal amount of penalty. Aggrieved the respondent filed appeal. The Commissioner (Appeals) by the impugned order allowed the appeal filed by the respondents and set aside the demand and penalty. Hence this appeal.
3. The learned DR reiterated the grounds of appeal and urged that M/s.Packotech Industries had supplied goods to the respondents on payment of central excise duty on the goods which resulted from a process which does not amount to manufacture. That therefore the respondents had wrongly availed Cenvat Credit.
4. The learned counsel appearing for respondents submitted that there is no dispute with regard to the supply/receipt of raw materials by the respondents. There is no dispute with regard to the payment of duty upon them. That the conditions for availing Cenvat Credit being satisfied by them, they are entitled to avail the same. The learned counsel also relied upon the decision rendered in CCE, Hyderabad vs. Deepthi Formulations Pvt.Ltd.02012 (266) ELT 396 (Tri.-Bang.).
5. Heard both sides and perused the records carefully.
6. The issue is covered by the decision laid in the decision cited supra. In para 3 of the judgement, the Tribunal has held as under:
3.?After considering the submissions, I find that the respondent satisfied the essential requirements for CENVAT credit. Notwithstanding excisability of the input, the supplier of the input paid duty thereon and issued a valid invoice to the respondent. The input so received in the respondents factory was used in or in relation to manufacture of their final product and its duty-paid character was evidenced by the invoices. In the circumstances, the respondent was entitled to take CENVAT credit of duty paid on the input as rightly held by the Commissioner (Appeals). The question whether the input had arisen out of a process of manufacture is irrelevant. The relevant question is whether the input was duty-paid.
7. In para 6 and 7 of the impugned order the Commissioner (Appeals) has observed as follows:
6. I find that as per Rule 3 of CCR, 2004 the requirement for availing the Cenvat Credit of duty paid on the inputs is receipt of the inputs in the factory under the cover of invoices evidencing payment of duty. This requirement is fulfilled and is not disputed. More importantly, it is a matter of fact that the appellant purchasing the duty paid goods for use in the manufacture of excisable final products, which has also not been disputed. I find once the duty paid goods have been used in the manufacture of final product the credit cannot be denied. I place reliance on the Supreme Court in the case of COMMISSIONER OF CUS. & C.EX. VS. TEXTILE CORPN. MARATHWADA LTD. -2008 (231) ELT 195 (SC) wherein it has been held that Duty paid at final stage and if it had to be paid at each and every stage, assessee would be entitled to Modvat credit and whole exercise would be revenue neutral.
7. I also rely upon the Honble Tribunal judgment in the case of Markwell Paper Plast Pvt.Ltd., Vs. Commissioner of Customs 2012 (285) ELT 76 (Tri.Del.) where the input used in final products emerging from process not amounting to manufacture but cleared on payment of duty, Department accepted excise duty on final product without protest and assessee not informed that their final product was not subjected to excise duty it has been held that in such a case, denial of cenvat credit would be against equity and justice.
8. From the above, I do not find any infirmity in the impugned order that calls for interference. The appeal filed by Revenue is dismissed.
(pronounced in the open court on 13.08.2015) (Sulekha Beevi C.S.) Member (Judicial) mk 4