Custom, Excise & Service Tax Tribunal
Colgate-Palmolive(India) Limited vs The Commissioner Of Central Excise, & ... on 25 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/1226/07 [Arising out of Order-in- Appeal No. RKR(81) 56/07 dated 30-4-2007 passed by the Commissioner(Appeals) Central Excise & Customs, Aurangabad] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
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 :
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?
=======================================================
Colgate-Palmolive(India) Limited
:
Appellant
VS
The Commissioner of Central Excise, & Customs, Aurangabad
:
Respondent
Appearance
Shri. Jitu Motwani, Advocate for the Appellants
Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 25/10/2016
Date of decision: 8/12 /2016
ORDER NO.
The appellant is engaged in the manufacture of Tooth Powder, which was dutiable up to 29-2-2000. During the dutiable period the Modvat credit of duty paid on various input used in the manufacture of Tooth powder was availed by the appellant and utilized for payment of duty on the final product. From March 2000, Tooth powder was exempted from payment of duty vide Notification No. 6/2000-CE dated 1-3-2000 and credit was availed by the appellant on input used in the manufacture of such goods. The Range Superintendent vide letter dated 9-3-2000 asked the appellant to reverse the modvat credit in respect of the input lying in stock, contained in stock of work in progress as on 1-3-2000. The appellant paid an amount of Rs. 18,49,458/- through PLA on 27-3-2000 under protest in terms of Rule 233B of Central Excise Rules, 1944. Subsequently, the appellant have written various letters in this regard wherein they informed the Dy. Commissioner that the entire credit of input which was used in the manufacture of Tooth powder, was availed and utilized by the appellant prior to 29-2-2000 and since no credit was availed thereafter, they were not required to reverse the credit on the stock and requested to re-credit of an amount reversed under protest on 27-3-2000. After various correspondence by the appellant with the department, no response was received from the department, appellant filed refund claim on 19-7-2005. The adjudicating authority vide order-in-Original dated 12-1-2006 rejected the claim. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals), who set aside the Order-in-Original and remanded the matter to the Adjudicating authority vide OIA dated 12-7-2006. The adjudicating authority in the remand proceedings once against rejected the refund vide Order-in-Original dated 29-1-2007 placing reliance on the decision of the Tribunal in case of M/s. Albert David Ltd Vs. Commissioner[2003(157) ELT A-81(SC)]. Being aggrieved by order-in-original dated 29-1-2007 appellant filed appeal before the Commissioner(Appeals) which came to be dismissed vide the impugned order dated 30-4-2007 therefore the appellant is before me.
2. Shri. Jitu Motwani, Ld. Counsel for the appellant submits that only reason for rejection of refund claim is that appellant was required to reverse the credit on the stock of input/finished goods/ work in progress in terms of Tribunal decision of M/s. Albert David Ltd(supra). He submits that the issue is squarely covered by the Larger Bench of this Tribunal in case of Commissioner of Central Excise, Rajkot Vs. Ashok Iron & Steel Fabrication[2002(140) ELT 277(Tri. LB)] which was upheld by the Honble Supreme Court reported in 2003(156) ELT A 212(SC)]. He further submits that since amount was paid /reversed by the appellant under protest, the Revenue should have issued the show cause notice for confirmation, however no show cause notice was issued. Therefore there is no reason for rejection of refund claim as no amount stands confirmed under an adjudication proceedings. He submits that judgment in case of M/s. Albert David Ltd(supra) is not applicable to the facts of the present case. The present case is covered by the decision of Ashok Iron and Steel (supra) whereas fact of the Albert David case is related to Rule 57 AD of erstwhile Central Excise Rules, 1944. Therefore the ratio of the Albert David case cannot be applied to the present case. He further submits that refund claim was rejected by Ld. Commissioner(Appeals) being time bar on the ground that the claim was filed after five years of the payment of duty. In this regard he submits that the refund is not time bar for the reason that duty payment was made under protest, thereafter appellant has made chain of correspondence, therefore limitation does not apply.
3. Shri. Ashutosh Nath, Ld. Asstt. Comissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that since the refund is clearly time bar as the same was filed after five years. On merit also the amount reversed by the appellant is correct as held in the following judgments:
(a) Uni deritend Ltd Vs. Commissioner of Central Excise, Nagpur[2004(166) ELT 252(Tri. Mumbai)]
(b) Vijal Marine Services Vs. Commissioner of Cus. & C. Ex., Goa[2016(337) ELT 335(Bom.)]
(c) C.C. & C.E. Tirupati Vs. Panyam Cements & Minerals industries Ltd[2016(331) ELT 206(A.P.)]
4. I have carefully considered the submissions made by both sides and perused the record.
5. The fact that no accumulated credit was lying as on date of Tooth powder got exempted is not under dispute. The Departments contention is that the appellant is required to reverse the Cenvat credit in respect of input, finished goods and work in progress lying on the date of exemption notification i.e. 29-2-2000. The Cenvat credit was availed by the appellant during the period when the final product i.e. Tooth powder was dutiable therefore the availment of credit was legally permissible. No provision in the Cenvat credit rules existed which provides for reversal of credit which was legally availed in case of final product gets exempted after availing the credit. This issue is no more res integra particularly as per the judgments of five member larger bench of this Tribunal in case of Ashok Iron and Steel (supra) which was upheld by the Honble Supreme Court. The entire basis of the lower authorities rejection of fund claim is that the case of Albert David (supra). The Revenue heavily relied upon the said judgment which was also upheld by the Supreme Court, however dismissal of the appeal filed by the M/s. Albert David is only a summary disposal and no reasoned order was passed therefore the dismissal of the appeal cannot be taken as a proceedings. Subsequently in following case the judgment of Albert David was departed/distinguished and disapproved in the Larger Bench decision in case of Ashok Steel and Iron Ltd:
(a) Commissioner of Central Excise, Raipur Versus S.B.A. Industrial Corpn. 2009 (246) E.L.T. 379 (Tri. - Del.)- Departed.
(b) Commissioner of C. Ex., Tirupati Versus Suvera Processed Foods Pvt. Ltd. 2015 (315) E.L.T. 517 (A.P.)] Distinguished
(c) Tractor and Farm Equipment Ltd. Versus Commr. of C. Ex., Madurai-II[2015 (320) E.L.T. 357 (Mad.)] Disapproved.
As per the above settled legal position the decision of the Albert David(supra) does not remain good law therefore the same is not applicable in this position. The law emerged is the one which laid down in the Larger Bench judgment in case of Ashok Iron and Steel(supra) therefore the appellant was not required to reverse the credit in respect of input, input contained in the finished goods, and input lying in work in progress. As regard the Commissioner(Appeals) rejection of refund on limitation, I find that appellant his admittedly paid the duty under protest and followed the procedure in term of 233B of Central Excise Rules, 1944. Moreover, the appellant have been pursuing the matter with the department by writing various letters and when there was no response from the department, thereafter appellant had no option except to file a formal refund claim in 2005. In this circumstances, it is not appellant who delayed the filing the refund but it is department who delayed in deciding the issue raised by the appellant. In my considered view, even the appellant was not required to file any refund claim, they could have taken the credit after issue on merit was settled in various judgments including case of Ashok Iron and Steel Ltd(supra). Therefore there is absolutely no case that refund being time bar. As per my above discussion, I am of the considered view that appellant is legally entitle for the refund alongwith consequential interest. The impugned order is set aside. Appeal is allowed with consequential relief, if any, in accordance with law.
(Order pronounced in Court on ________________ ) Ramesh Nair Member (Judicial) sk 2 E/1226/07