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2023 (9) TMI 60 - AT - Central ExciseCENVAT Credit - allegation of the department is that the appellants have not availed CENVAT Credit available to them in order to manipulate the cash refund in terms of Notification no. 56/2002 - HELD THAT - Hon ble Supreme Court in the case of COMMISSIONER OF C. EX., HYDERABAD VERSUS NOVAPAN INDUSTRIES LTD. 2007 (1) TMI 5 - SUPREME COURT held that as against this the ld. Commissioner (Appeals) has recorded that this element when inbuilt in the price and claimed as a deduction to be in the nature of an abatement and as therefore concluded that such a claim for abatement was not considered by the Hon ble Supreme Court in the GOVERNMENT OF INDIA VERSUS MADRAS RUBBER FACTORY LTD. 1995 (5) TMI 28 - SUPREME COURT case. Revenue seeks to include the value of cardboard boxes supplied free of cost by the customer to be included in the assessable value of the tin containers. We find that the issue is no longer res integra. Hon'ble Apex Court in the case of JAUSS POLYMERS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT 2003 (9) TMI 87 - SUPREME COURT held that since the drums were supplied by the buyer and were not supplied by the manufacturer, their cost cannot be included. The appellant has not violated any provisions of either CENVAT Credit Rules, 2004 or the conditions of Notification No. 56/2002. The appellants did not avail cash refund in some months and in some months, they availed refund less than the upper limit of 39%. This goes to prove the bona fides of the appellant - the appellants are not required to include the cost of packing material supplied free by the appellant in the assessable value of the tin containers manufactured and cleared by them. Therefore, the demands raised and confirmed thereof; penalties imposed are not sustainable. Appeal allowed.
Issues Involved:
1. Utilization of CENVAT Credit. 2. Inclusion of the value of corrugated boxes in the assessable value of tin containers. 3. Validity of the refund claims under Notification No. 56/2002-CE. Summary: 1. Utilization of CENVAT Credit: The appellants argued that there is no time limit fixed under CENVAT Credit Rules, 2002 for availing credit on inputs received in the factory, and credit can be taken as per the choice of the assessee. They contended that Notification No. 56/2002 does not stipulate any condition that if duty is paid from PLA without fully utilizing the available CENVAT Credit, refund will not be applicable. The Tribunal agreed with the appellants, referencing Rule 4 of CENVAT Credit Rules 2004 and CBEC Circular No. 345/2/2000-TRU dated 29.08.2000, which clarify that there is no outer time limit prescribed for availing CENVAT Credit. The Tribunal cited the case of Steel Authority of India Ltd. and concluded that the word 'may' in sub-rule (1) of Rule 4 cannot be read as 'shall'. 2. Inclusion of the value of corrugated boxes in the assessable value of tin containers: The appellants argued that the cost of packing material supplied free of cost is not includible in the assessable value of the excisable goods. The Tribunal agreed, referencing the Supreme Court's decision in Jauss Polymers Ltd., which held that if the manufacturer asks the customer to bring their own container and does not charge anything therefor, the cost (or value) of the packing cannot be notionally added to the price at which the goods are sold. 3. Validity of the refund claims under Notification No. 56/2002-CE: The appellants contended that even if duty is paid from PLA without fully utilizing the CENVAT Credit available, it cannot be a ground to deny cash refund under Notification No. 56/2002, as such unutilized credit of a month can be utilized for payment in subsequent months, leading to a revenue-neutral situation. The Tribunal agreed, referencing its decision in Shreenath Industries, which held that the excess amount paid by the appellant is merely a deposit, not a duty, and thus, the provisions of Section 11A of the Central Excise Act, 1944, are not applicable. The Tribunal also noted that the department had accepted the procedure followed by the appellants in earlier refund cases and could not take a contrary stand in subsequent cases, citing the Supreme Court's decision in Novapan Industries Ltd. Conclusion: The Tribunal found that all the issues raised in the impugned show-cause notice were squarely covered in favor of the appellant. The appellants did not violate any provisions of either CENVAT Credit Rules, 2004, or the conditions of Notification No. 56/2002. The demands raised, penalties imposed, and the impugned order were set aside, and the appeals were allowed.
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