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TMI Blog2013 (12) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be denied on the grounds that Cenvat Credit was not required to be reversed at Nashik unit – Relying upon Commissioner of Central Excise, Chennai Vs. CEGAT [2005 (1) TMI 125 - HIGH COURT OF JUDICATURE AT MADRAS] - once duty paid inputs received, Modvat Credit cannot be denied on the grounds that such inputs were not liable for duty - If any action for wrong payment of duty is required to be taken, it should be at the place where the duty was paid - Demand set aside – Decided in favour of Assessee. - E/391/07-Mum. & E/183 to 187, 315/2009-Mum. - Final Order Nos. A/344-350/2013-WZB/C-II(EB) - Dated:- 7-5-2013 - S S Kang And P K Jain, JJ. For the Appellant : Shri Suresh Shinde, Shri Srikant Ropalekar, Shri Ramdas G Datir For the Respondent : Shri V S Nankani, Adv. K L Goyal, Commissioner (AR) PER : P K Jain This order deals with 7 appeals filed by M/s. Hindustan Coca Cola Beverages Pvt. Ltd. (HCCBPL) Wada, Nashik, Pune. and others. 2. Appeal No. E/391/07-Mum is filed by M/s. Hindustan Coca Cola Beverages Pvt. Ltd. Pune against the Order-in-Original No.32/2006-Adj dated 7.12.2006 passed by Commissioner of Central Excise, Pune III Commissionerate. The perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be accompanied by any duty paying documents. 5. However, many a times such used empty bottles/plastic crates after cleaning etc are transferred from one unit to other unit due to various operational/commercial considerations. For example, a unit may be facing shortage of empty bottles/crates while other unit may have excess stock. Further, each unit serves particular geographical area. In such geographical area of each unit, numbers of depots exist. At times, in particular geographical area, demand of liquid beverages may exceed what can be supplied by the concerned manufacturing unit at that point of time. It can also be due to a particular variety not being manufactured in that unit. In such situation liquid beverages from other unit is received in the depots of the unit. After consumption of liquid beverages, used empty bottles/crates are returned to the jurisdictional unit as normally no distinction can be made in the used bottles of particular unit. Even if distinction can be made, (due to different variety of beverages), these may be returned for cleaning etc to take care of hygienic aspects and thereafter returned to the original unit. Bottles/crates do not have marks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under. When inputs or capital goods on which Cenvat credit has been taken, or removed as such from the factory, or premises of the provider of out put service the manufacture of the final products or provider of out service as the case may be shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to the Rule 9 . 26. In the instant case the goods were not cleared as such as these goods were received again and again for refilling. Their nature is not covered by the Cenvat Credit Rules 2002. Rule 16(1) of Central Excise Rules, 2002 states as under. Credit of duty on goods brought to the factory (i) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. 27. Further sub rule (2) of Rule 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Thane I vide order dated 1.11.2008 has disallowed the Cenvat Credit and confirmed the total demand of Rs.2,57,00,701/-. This demand also includes certain other issues involving an amount of Rs.6,39,922/- In addition, Commissioner imposed penalty on the Wada unit, Nashik Unit and three officials of Wada uit and all of them are in appeal. The main issue raised in the Show Cause Notice and impugned Order is that the used empty glass bottles/crates belong to Wada unit and therefore, there is no reason to clear these bottles/crates inputs cleared as such by Nashik Unit. On reversal of credit under Rule 3(5) of the Cenvat Credit Rules. Nashik Unit has not taken the credit on these bottles initially and therefore, there cannot be reversal of credit or clearance of input as such by Nashik Unit. Further Wada unit cannot take Cenvat Credit twice on the same bottles. 9. In additions to main issue detailed in earlier para, there are other issues amounting to Rs.6,39,922/-. These are as under: (i) An amount of Rs.33,761/- has been demanded in respect of Invoice No. 2974, 2978 2991 as detailed in Annexure E to the demand notice as two set of invoices bearing the same invoices nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be . [ Explanation. - The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods.] (3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the Commissioner . From Sub-Rule (1), we observe that the said rule is relating to goods brought to the factory where (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or dispute what has been done there. Thane Commissioner could have taken up with Nashik if anything wrong was done by the appellant. Ld. Advocate further argued that department has not been able to adduce any evidence to prove that the used bottles/used crates were the ones on which Wada unit has taken the credit. It is only the numerical number which can be tallied. Bottles/Crate does not have any number or identification mark so as to identify with particular units. Initially, when they were clearing without reversal of credit, department in Visakhapatnam and Pune objected to that and wanted reversal of Cenvat Credit and now when they reversed the credit at Nashik, Wada Unit is objecting to taking the credit. 12. We have considered the submissions of the Ld. advocate. We note that the nature of goods is such identification with a particular unit is not practically possible. (Until and unless there is some mark or shape assigned to each unit). In such a situations, it is neither possible for the assessee nor the department to prove one way or the other. However, we find that the used glass bottles/crates in dispute were cleared on reversal of Cenvat Credit by the Nashik Unit. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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