Custom, Excise & Service Tax Tribunal
Silvasa vs Welspun Syntex Ltd on 28 November, 2019
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Excise Appeal No.11854 of 2018
Excise Cross Application No. 10887 of 2018
(Arising out of OIA-CCESA-AUDIT-SRT-VK-040-2017-18 passed by Commissioner (Appeals)
Commissioner of Central Excise, Customs and Service Tax-SURAT-I)
C.C.E. & S.T.-Silvasa .........Appellant
Commissioner Central Excise, Customs & Service Tax,
Silvassa, 4th Floor, Adarsh Dham Building, Vapi Daman Road Vapi
Opp. Old Town Police Station
Vapi, Gujarat
VERSUS
Welspun Syntex Ltd .........Respondent
Survey No. 394/P, Village-Sayli, Silvassa, Dadra & Nagar Haveli (Ut).
WITH Excise Appeal No.11855 of 2018 Excise Cross Application No. 10888 of 2018 (Arising out of OIA-CCESA-AUDIT-SRT-VK-041-2017-18 passed by Commissioner (Appeals) Commissioner of Central Excise, Customs and Service Tax-SURAT-I) C.C.E. & S.T.-Silvasa .........Appellant Commissioner Central Excise, Customs & Service Tax, Silvassa, 4th Floor, Adarsh Dham Building, Vapi Daman Road Vapi Opp. Old Town Police Station Vapi, Gujarat VERSUS Welspun Syntex Ltd .........Respondent Survey No. 394/P, Village-Sayli, Silvassa, Dadra & Nagar Haveli (Ut).
AND Excise Appeal No.12497 of 2018 Excise Cross Application No. 10948 of 2018 (Arising out of OIA-CCESA-SRT-APPEALS-PS-53-2018-19 passed by Commissioner (Appeals) Commissioner of Central Excise, Customs and Service Tax-SURAT-I) C.C.E. & S.T.-Daman .........Appellant 3rd Floor...Adarsh Dham Building, Vapi-Daman Road, Vapi Opp.Vapi Town Police Station, Vapi, Gujarat-396191 Versus M/s. Wellknown Polyester Limited .........Respondent Plot No. 178, Dabhel Industrial Co-operative Society Ltd., Dabhel, DAMAN,, DAMAN (UT) APPEARANCE:
Sh. S. K. Shukla, Superintendent (AR) for the Appellant Sh. S. J. Vyas, Advocate for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU
2|Page E/11854-11855,12497/2018 Final Order No. A/12243-12245 / 2019 DATE OF HEARING: 18.11.2019 DATE OF DECISION: 28.11.2019 RAMESH NAIR The common issue involved in all the three appeals is that whether the appellant can utilize the Cenvat Credit of basic Excise Duty for payment of National Calamity Contingent Duty (NCCD).
2. Shri S.K. Shukla, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the grounds of the appeal. He submitted that as per the Sikkim High Court Judgment in the case of Unicorn Industries vs. Union of India 2015 (324) E.L.T. 498 (Sikkim), the appellant is not entitled to pay National Calamity Contingent Duty from the Cenvat Credit of Basic Excise Duty.
3. Shri S. J. Vyas Learned Counsel appearing on behalf of the Respondent at the outset submits that the issue involved in the present case that the utilization of Cenvat Credit for payment of NCCD has been settled in various judgments including the judgments in the appellants own case. He relied upon the following judgments.
Sanathan textile 2018 12 TMI 356 TRI AHD Prag Bosmi Synthetics- 2013 11 TMI 487 HC Gauhati Bajaj Auto Ltd- 2019 3 TMI 1427 SC
4. We heard both the sides and perused the records. We find that the appeal of the revenue is only on the reliance of Hon'ble Sikkim high court judgment in the case of Unicorn Industries vs. Union of India (supra). Whereas we find that on the absolutely identical issue that whether payment of National Calamity Contingent Duty can be made by utilizing the Cenvat Credit of Basic Excise Duty has been dealt with by the Hon'ble Gauhati High Court in the case Union of India Vs. Kamakhya Cosmetics Pharmaceutical Pvt. Ltd., 2015 (323) E.L.T. 33 (Gau.) (Ex.-G) wherein it was held that payment of education cess can be made by utilizing Cenvat Credit of Basic Excise Duty. This judgment was passed relying the same High Court Judgment in the case of CCE, Dibrugarh Vs. Prag Bosimi Synthetics Ltd., 2013 (295) ELT 682 (Gau), wherein the Hon'ble Guwahati High Court has answered a reference whereby it was held that while Cenvat Credit of NCCD can be utilized under the Cenvat Credit Rules only towards payment of such NCC Duty, Cenvat Credit obtained from other sources can be utilized for payment of NCC Duty on the final product. Same view taken by the Hon'ble UttaraKhand High Court in the case of Hero Motocorp Ltd., Vs. CCE,
3|Page E/11854-11855,12497/2018 Dehradun, 2018 (14) GSTL 200 (Uttarakhand) whereby it was held that NCCD & CESS are part of levies under rule 3(1) of Cenvat Credit Rule, 2004 making an aggregate of Cenvat Credit hence, assessee could make use of Basic Excise Duty for payment of NCCD & CESS. Even in the case of Appellant itself the utilization of credit of basic excise duty for payment of NCCD has been allowed by Revisionary Authority, Department of Revenue Government of India reported as Welspun Corporation Ltd., 2014 (314) ELT 968 (GOI).
5. This Tribunal also in the appellant's case vide order No. A/11583/2016 dated 24.11.2016 dismissed the revenue's appeal filed on the same issue on the same line. As regard the sole reliance of the Revenue on the Judgment of Sikkim High Court in the case of Unicorn Industries vs. Union of India (Supra), We find that issue involved in such case was on exemption from payment of NCCD whereas the issue before us is whether the appellant is entitled to utilize Cenvat Credit of Basic Excise Duty for payment of NCCD. Therefore the judgment of the Sikkim High Court in the case of Unicorn Industries vs. Union of India (Supra) being on entirely different issue is not applicable.
6. In our above observation we are of the clear view that the order passed by the Lower Authority is proper and legal which do not require any interference. Hence, the impugned orders are upheld. Revenue's appeals are dismissed.
(Pronounced in the open court on 28.11.2019) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) Mehul