Customs, Excise and Gold Tribunal - Calcutta
Tisco Ltd. vs Cce on 15 January, 2003
Equivalent citations: 2003(88)ECC255
JUDGMENT Archana Wadhwa, Member (J)
1. After dispensing with the condition of predeposit of duty and penalty we take up the appeal itself inasmuch as the issue is covered by the earlier decisions of the Tribunal in a number of cases.
2. The appellants are engaged in the manufacture of steel tubes for which purposes they procure HR coils and after availing modvat credit on the same sent the same to the job-worker. However, at the time of sending the goods to their job-workers they reversed back the quantum of credit availed. At the job-workers' premises the goods are converted into some intermediate products, which are brought back to the appellants' factory alongwith the waste and scrap. On receiving back the processed goods and the waste and scrap the appellants re-credited the modvat in their accounts. However, at the job-workers' premises there is some invisible loss during the course of processing carried out at their promises. It is in respect of this invisible loss that the modvat credit to the extent of around 19 lakhs has been denied to the appellants.
3. Dr. Samir Chakraborty, Ld. adv. appearing for the appellant submits that the issue is no more res integra and is covered by the various decisions as detailed below:
(a) UOI v. Indian Aluminium Co. Ltd., 1995 (77) ELT 268 (SC)
(b) Hindustan Platinum Pvt. Ltd. v. CCE, 1995 (77) ELT 276 (SC)
(c) CCE, New Delhi v. DD Industries Ltd., 1997 (93) ELT 514 (T)
(d) Panchmaham Steels Ltd. v. CCE, Vadodara, 1997 (93) ELT 516 (T)
(e) Chinni Engg. Works v. CCE, Allahabad, 2002 (53) RLT 65 (CEGAT-Del.)
(f) CCE, Chandigarh-I v. Atul Fastners, 2002 (52) RLT 793 (CEGAT-Del.)
(g) M.J. Engg. Works v. CCE, New Delhi, 2002 (52) RLT 795 (CEGAT-Del.)
4. We find that all the above referred decisions which are exactly on the issue covered were relied upon by the appellant before Commissioner (Appeals). However, he has not followed the same by referring to the Larger Bench decision of the Tribunal in the case of Avis Electronics Pvt. Ltd. wherein an observation was made that when a particular thing is directed to be performed in a manner prescribed under the rule it should be prescribed under that manner itself and not otherwise. However, we find that the reliance by the appellate authority on the above observation made by the Larger Bench in a different context is altogether irrelevant inasmuch as it is not the Revenue's case that the invisible loss occurred at the job-workers' premises can be brought back to the appellants' factory. It is neither possible nor practicable. The Revenue is also not doubting that the shortage of waste and scrap brought back to the appellants' factory was on account of invisible loss having occurred at the job-workers' premises. This loss is also only to the tune of 0.25%. In the case of CCE v. Atul Fastners, the Tribunal while allowing the credit in respect of the burning/invisible loss arising at the job-workers' premises had the occasion to deal with the Larger Bench decision in the case of Avis Electronics and distinguished the same as not applicable to the facts of the case. Similarly in the case of M/s. Chinni Engg. referred supra, we find that the modvat credit in respect of burning/melting loss at the job-workers' premises was held to be not deniable. To the same effect are the other decisions referred supra. We also find that the Board's instruction as contained in F.No.267/136/87-CX 8 dt. 15.1.88 are also applicable to the facts of this case inasmuch as the same is to the effect that the benefit of credit should not be denied on the ground that part of the inputs is contained in the slag and other invisible loss. Though this instructions cover the situation in the manufacturers' own premises but the principle laid down therein would also get extended to the invisible loss at the job-worker premises.
5. In view of our foregoing discussion we set aside the impugned order and allow the appeal with consequential relief in the appellants. Stay petition also gets disposed of.