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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 ..... these two appeals is identical viz. demanding duty under Rule 16 of the Central Excise Rules, 2002 on the used empty glass bottles and used plastic crates cleared by Pune Unit to other units of M/s. Hindustan Coca Cola Beverages Pvt. Ltd. 3. Appeal Nos. E/183-187/2009 are filed against Order No. 18/MS-18/2008/Th-I dated 1.11.2008 passed by Commissioner of Central Excise, Thane I. The five appeals are filed by five notices viz. (1) Hindustan Coca Cola Beverages Pvt. Ltd. Wada, Thane (2) Hindustan Coca Cola Beverages Pvt. Ltd. Nasik (3) Shri Suresh Shinde, Manager Excise & Shipping (4) Shri Shrikant Ropalekar, Manager, Finance (5) Shri Ramdas G. Datir, Team Leader, Shipping. While first noticee has filed appeal against confirmation of demand and penalty, other four notices have filed appeal against imposition of penalty under Rule 26 of the Central Excise Rules, 2002. This case pertains to the period April, 2003 to June, 2004. 4. The brief facts of the case are that the appellants (HCCBPL Pune, Thane and Nasik) are engaged in the manufacture of aerated water having several bottling plants located across the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unknown. Only average number of usages can be found. 6. During April, 2001 to July, 2006, the appellant (HCCBPL, Pune) transferred used empty glass bottles and crates to its sister units under empty dispatch Memo (EDM). No Cenvat Credit was reversed/paid by them at the time of clearance/transfer to other units or thereafter. Two demand notices were issued. The first one (April 2001- March 2006) was adjudicated by Commissioner, the second one (April 2006 - July 2006) was adjudicated by Assistant Commissioner and thereafter appeal decided by the Commissioner (A). The conclusion in the two orders are same. The relevant portion of the first order, reads as - "24. I find that noticee is engaged in the manufacture of aerated water and are availing Cenvat credit on the inputs viz glass bottle and plastic crates. The allegation in the SCN was that the noticee had removed Cenvatable inputs viz empty glass bottle and plastic crates, as such, to their Nasik Plant and other plants situated at various places in India under a private documents viz 'Empty Dispatch Advice' without reversal of an amount equal to Cenvat credit availed by them. It was further observed that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" 28. I find that the assessee had failed to follow the procedure as laid down in rule 16 (1) and 16(2) of the Central Excise Rules 2002 moreover it seen that their own unit at Nasik reversed Cenvat Credit and prepared stock transfer invoice for removal of such goods being in excess with them." 7. The main argument of the appellants is that Ld. Commissioner has held that Rule 3 (5) of Cenvat Rules is not applicable. Finding of the Ld. Commissioner has not been challenged by the department either in the form of Appeal or cross objections to the present appeal and therefore has reached to finality. The only question to be decided is whether such a demand can be sustained under Rule 16 of the Central Excise Rules. Ld. Advocate contended that plain reading of Rule 16 would indicate that said Rule applies only to duty paid goods which are returned to the factory for remaking, reconditioning, rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation were started. (ii) An amount of Rs.67,684/- has been in respect of three invoices where the size of duplicate & triplicate copies are different. These are detailed in Annexure F to the show Cause Notice. According to Ld. Advocate for the appellant in stray cases, Wada unit did not receive excise invoices alongwith the consignment of empty bottles and crates from Nasik and therefore they have requested the Nasik Unit to send such excise invoices. The Wada unit had no idea that Nasik Unit had reprinted these. He further argued that there is no allegation that goods have not been received or duty have not been paid in Nasik. Under the circumstances, this demand does not survive. (iii) An amount of Rs.43,744/- has been demanded as per details in Annexure G to the demand notice. Ld. Advocate for the appellant has explained how the mistake has crept in and stated that they are not contesting the demand but penalty should not be imposed as it is human error. (iv) An amount of Rs.4,94,733/- has been demanded in respect of invoices where the document control umber differs on the duplicate and triplicate copies. These are de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factory for being remade, refined, reconditioned or for any other reasons. If above mentioned two conditions are satisfied then assessee is entitled take Cenvat Credit of the duty paid as if such goods are received as inputs. We note that in respect of used glass bottles/ used plastic crates, no separate duty has been paid at the time of removal as these were part of liquid beverage being cleared by the appellants. Duty was paid by the original manufacturer of glass bottles/plastic crates and credit of the duty so paid has already been taken by some or other unit of appellant. Appellant under the circumstances cannot take credit of duty, as it will amount to taking credit of duty twice. Sub-rule (2) of Rule 16, stipulates two situations viz. (a) where the process to which the goods are subjected before being removed does not amount to manufacture. (b) Cases other than (a) above. In situation covered by (a) above, manufacturer is expected to pay an amount equal to Cenvat Credit taken. In situation (b), manufacturer shall pay duty on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter investigations were done by Commissioner of Central Excise - Thane-I. We agree with contention of Ld.advocate that under the circumstances Commissioner/Thane I cannot deny availment of Cenvat Credit by Wada Unit on the grounds that Cenvat Credit was not required to be reversed at Nashik unit. In this context, we note judgement of Hon'ble Madras High Court in the case of Commissioner of Central Excise, Chennai Vs. CEGAT reported in 2006 (202) ELT 573 Mad. In para 4, the Hon'ble High Court observed as, - "4 A perusal of Section 57A(1) shows that the terminology used therein is paid and not 'payable'. This distinction, in our opinion, is important because it indicates that we have to take into account the factual state of affairs. In other words, we have to consider whether the duty has actually been paid on the raw material and not whether duty was payable or not. In the present case, it is not in dispute that the assessee's supplier in fact that paid the duty on the raw materials supplied to the assessee and the department accepted this excise duty. The concept of Modvat is that if the raw material suffered duty then relief should be given so far as the excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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