2023 (1) TMI 55 - AT - Central Excise

Recovery of cenvat credit of basic excise duty - it is alleged that amount wrongly utilized for payment of education cess and secondary and higher education cess as both the cess are not considered as excise duty - additional premise is not registered under the Act and hence benefit of duty exemption under notification no. 67/95-CE is available to such premise or not - revenue neutrality - time limitation - HELD THAT - It can be seen from the available records that the capital goods in question were transferred by appellant under transfer invoice to its additional premise situated about 500 mtrs away from its registered factory premise. Further, it is not in dispute that both the premises are known as M/s. Jyoti CNC Automation Pvt Ltd; are owned and controlled by the same legal entity; and the use of the said capital goods so transferred to the additional premise is exclusive and in or in relation to manufacturing of final products cleared by the appellant at its registered factory on payment of duty. If that be so, capital goods in question cannot be said to have been cleared from the appellant s factory attracting excise duty but have to be treated as captively used in the factory of the appellant. The additional premise of the appellant where the said capital goods were installed is to be treated as extension of appellant s factory in view of definition of Factory as provided under section 2(e) of the Central Excise Act, 1944. The word precincts has to be given a broader meaning and the distance between such premises carrying out manufacturing process connected with the production of excisable goods, is not material to deny benefit of exemption notification. This issue is settled by the Hon ble Supreme Court in the case of SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER, CUS. C. EX., MP 2006 (8) TMI 3 - SUPREME COURT . Thus, the additional premise is an extension of factory of the appellant and hence benefit of notification no. 67/95-CE cannot be denied to the appellant - the situation is therefore revenue neutral, in the circumstances, demand of duty on transfer of such capital goods on the ground that the other premise is to be treated as separate premise requiring separate registration under the Act is not tenable. The OIAs to the extent confirmed the duty and penalty is required to be set aside and appeals of the appellant is required to be allowed - Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Benefit of notification no. 67/95-CE for transfer of capital goods to additional premise
- Utilization of cenvat credit of basic excise duty for education cess

Analysis:

Issue 1: Benefit of notification no. 67/95-CE for transfer of capital goods to additional premise
The appellant transferred capital goods to its additional premise for manufacturing parts of machinery, which were then used in the final products cleared from the factory. The revenue contended that since the additional premise was not registered, the benefit of notification no. 67/95-CE did not apply. However, the Tribunal found that both premises were owned and controlled by the same entity, and the additional premise was an extension of the factory under the Central Excise Act. Citing the definition of "Factory" under the Act, the Tribunal held that the benefit of the notification could not be denied as the capital goods were captively used in the factory. The Tribunal also emphasized that the situation was revenue neutral, and demanding duty on the transfer of capital goods was not legally sustainable.

Issue 2: Utilization of cenvat credit of basic excise duty for education cess
The appellant argued that utilizing cenvat credit for education cess was permissible, citing various judicial decisions supporting their stance. The Learned Commissioner (Appeals) set aside the duty demand related to the utilization of cenvat credit for education cess, relying on previous case laws and judgments. The Tribunal concurred with this decision, noting that the legal position had evolved in favor of the appellant based on judicial pronouncements. Since the revenue did not appeal against this decision, it was deemed final. Consequently, the Tribunal upheld the decision to set aside the duty and penalty related to the utilization of cenvat credit for education cess.

In conclusion, the Tribunal allowed the appeals, modifying the impugned orders to set aside the duty and penalty as per the findings on both issues. The judgment provided detailed legal analysis and cited relevant legal provisions and precedents to support its conclusions.