Custom, Excise & Service Tax Tribunal
M/S Lok Nath Prasad Gupta vs Cce, Delhi Ii on 22 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 22/07/2015. DATE OF DECISION : 22/07/2015. Excise Appeal No. 586 of 2010 [Arising out of the Order-in-Original No. 134/2009-10 dated nil passed by The Commissioner of Customs and Central Excise, New Delhi.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? M/s Lok Nath Prasad Gupta Appellant Versus CCE, Delhi II Respondent
Appearance Shri Amit Jain, Advocate for the appellant.
Shri Pramod Kumar, Authorized Representative (Jt. CDR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 52323/2015 Dated : 22/07/2015 Per. Ashok Jindal :-
The appellant is in appeal against the impugned order for denial of Cenvat credit on inputs on the ground that as the activity undertaken by the supplier of inputs has been held by the Adjudicating Authority does not amount to manufacture therefore the supplier was not required to pay duty consequently what amount paid by the supplier is not entitled Cenvat credit to the appellant as duty.
2. Heard the parties and perused the records. The issue has been settled by the various pronouncement of the various Honble High Courts as well as Honble Apex court, particularly in the case of CCE, Delhi III vs. Neel Metal Products Ltd. reported in 2009 (237) E.L.T. 270 (P&H), wherein the Honble High Court has examined the issue and thereafter hold as under:-
5.?On appeal, the Commissioner of Central Excise upheld the order-in-original, vide his order dated 15-12-2006 (A-2). An appeal before the Tribunal was filed vide its final order dated 19-3-2008, the Tribunal has set aside order dated 15-12-2006 by sustaining the argument of the respondent-assessee that the supplier of inputs paid duty and that supplier of inputs was not a party to the proceedings. In that regard, the Tribunal has placed reliance on a judgment of Honble the Supreme Court in the case of M/s. Sarvesh Refractories Pvt. Ltd. v. CCE, 2007 (218) E.L.T. 488 in its order dated 19-3-2008 (A-3). The operative part of the order reads thus :-
4. We find that prior to 2-3-05, the processes undertaken by the supplier of inputs are treated as manufacture of goods. Only w.e.f. 2-3-05 the same process as per Boards circular does not amount to manufacture. The supplier of inputs paid duty which is not in dispute. The supplier of inputs is not a party to the present proceedings. The revenue denied the benefit of credit taken by the recipient of inputs. Honble Supreme Court in the case of Sarvesh Refractories (P) Ltd. (supra) [Sarvesh Refractories (P) Ltd. v. Commissioner of Central Excise & Customs, 2007 (218) E.L.T. 488 (S.C.)] held that the appellant-assessee as consumer cannot get classification changed under which goods were cleared by the manufacturer. In view of the above discussion, we find merit in the contention of the appellant. The impugned order is set aside and the appeal is allowed.
3. In a similar case in the case of APG Food Products vs. CCE, Delhi II vide final order No. 55420/2013 dated 30/01/2013. This Tribunal came to the conclusion that Cenvat credit cannot be denied on the ground that activity undertaken by the supplier of input does not amount to manufacture, therefore, following the precedent decision of the Tribunal in the case of APG Food Products vs. CCE, Delhi II (supra) we hold that the Cenvat credit cannot be denied on the ground that activity undertaken by the supplier of input does not amount to manufacture. In these terms the impugned order is set aside. The appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open court) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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