Custom, Excise & Service Tax Tribunal
Colgate Palmolive (India) Ltd vs Commissioner Of Central Excise, ... on 17 January, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Application No. E/S/2268/2010-Mum. in Appeal No. E/2082/2010-Mum. (Arising out of Order-in-Original No.42/CEX/Commr.2010 dated 13th September 2010 passed by the Commissioner of Customs, Central Excise & Service Tax, Aurangabad. ) For approval and signature: Honble Mr. S.S.Kang , Vice President Honble Mr. Sahab Singh, 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 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?
=============================================================
Colgate Palmolive (India) Ltd.
:
Appellant
VS
Commissioner of Central Excise, Customs & Service Tax, Aurangabad.
:
Respondent
Appearance
Shri V.S. Nankani, Advocate for Appellant
Shri P.N. Das, Commissioner (A.R)
CORAM:
Mr. S.S. Kang, Vice President
Mr. Sahab Singh, Member (Technical)
Date of hearing : 17/01/2012
Date of decision : 17/01/2012
ORDER NO.
Per : S.S.Kang
Heard both sides.
2. The appellant filed this application for waiver of pre-deposit of duty of Rs.3,24,61,073/-, interest and penalty. The demand is confirmed in view of the unamended provisions of Rule 6 of the CENVAT Credit Rules 2004 on the ground that applicants were availing credit in respect of the duty paid on inputs used in or in relation the manufacturer of goods cleared on payment of duty as well as common input services. In view of the unamended provisions of Rule 6 of CENVAT Credit Rules 2004, the applicants were liable to pay 10% of the price of exempted goods.
3. The contention of applicant is that provisions of Rule 6 of CENVAT Credit Rules 2004 are amended retrospectively vide Finance Act 2010 and by the retrospective amendment only reversal credit proportionate to the input/input services used in or in relation to the manufacturer of exempted goods is made goods. The contention of applicant is that though the impugned order is passed after the amendment but the same has not been taken into consideration by the adjudicating authority. The applicant had already reversed the credit of Rs.28,77,419/- on 3rd August 2006 in respect of the input services used in or in relation to the exempted goods in view of the retrospective amendment of the CENVAT Credit Rules. The contention of applicant the demand is not sustainable.
4. The Revenue reiterates the finding of the adjudicating authority and relied upon the decision of Honble Bombay High Court in the case of Commissioner of Central Excise Vs. Nicholas Piramal (India) Ltd. reported in 2009 (244) ELT 321 whereby Honble High Court interpreted the provisions of Rule 6 of the CENVAT Credit Rules and confirmed the demand on the same issue.
5. We find that demand is confirmed in view of the unamended provisions of Rule 6 of CENVAT Credit Rules. The Rule 6 provides that in case of manufacturer is availing credit in respect of the duty paid on input/input services are not maintaining separate records as input used in or in relation to the manufacture of exempted as well as excisable goods on the which duty is paid the manufacturer is liable to pay 10% of the price of the exempted goods. We find that the provisions of Rule 6 of CENVAT Credit Rules 2004, as amended retrospectively by Finance Bill 2010. The amended provisions provided the said amendment are reproduced below :
Sr. No. Provisions of Cenvat Credit Rules, 2004 to be amended Amendment Period of effect of amendment (1) (2) (3) (4) Rule 6 of the Cenvat Credit Rules, 2004 as published vide Notification No. G.S.R. 600 (E), dated the 10th September, 2004 [23/2004-C.E.(N.T.),dated the 10th September, 2004] In the Cenvat Credit Rules, 2004, in rule 6, after sub-rule (6), the following sub-rule shall be inserted, namely:- (7) Where a dispute relating to adjustment of credit on inputs or input services used in or in relation to exempted final products relating to the period beginning on the 10th day of September, 2004 and ending with the 31st day of March, 2008 (both days inclusive) is pending on the date on which the Finance Bill, 2010 receives the assent of the President, then, notwithstanding anything contained in sub-rules (1) and (2), and clauses (a) and (b) of sub-rule (3), a manufacturer availing CENVAT Credit in respect of any inputs or input services and manufacturing final products which are chargeable to duty and also other final products which are exempted goods, may pay an amount equivalent to CENVAT credit attributable to the inputs or input services used in, or in relation to the manufacture of, exempted goods before or after the clearance of such goods :
Provided that the manufacturer shall pay interest at the rate of twenty-four per cent per annum from the due date till the date of payment of the said amount.
Explanation For the purpose of this sub-rule, due date means the 5th day of the month following the month in which goods have been cleared from the factory.
10th day of September, 2004 to the 31st day of March, 2008 (both days inclusive)
6. The retrospective amended provisions of Rule 6 was not taken into consideration by the adjudicating authority while passing the impugned order. Therefore the matter requires re-consideration by the adjudicating authority. The impugned order is set aside after waiving the pre-deposit of duty, interest and penalty and the matter is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand (Dictated in court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President Sm ??
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