9911796707
TMI Blog2013 (9) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty of excise or as the case may be of service tax leviable under the said Additional Duties of Excise (Textiles & Textile Articles) Act, 1978 on any final products manufactured by the manufacturer or for payment of such duty on the inputs themselves if such inputs are removed as such or after being partially processed or any output service. The provisions of said Rule 3(7)(b), does not permit the utilization of Cenvat credit of AED (T&TA) towards payment of Basic Excise Duty. - There is no ambiguity in the provisions of circular No. 267/11/2003-Cx-8, dated 22-3-2007. Applicant was entitled for refund under Rule 5 subject to compliance of condition/procedure laid down therein. But, there was no provision under the rules for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty paid. Upon filing the said rebate claims with the Deputy Commissioner, Taloja Division, the same was rejected holding that accumulated Cenvat credit of Additional Excise Duties (T&TA) cannot be utilized for payment of basic excise duty on any final product. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the appeal. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following common grounds :- 4.1 The applicants submit the finding of the CCE (Appeals) in Paras 5, 6, 7 & 8 that the permission/order dated 5-5-2010 was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared for home consumption or for exports on payment of duty or if this is not possible, allow refund of such amount. The said circular dated 22-3-2007 makes a reference to Rule 5, and Rule 5 clearly permits use of inputs credit for payment of basic excise duty on exports. Therefore, even from this point of view, the said circular permits payment of unutilized accumulated AED (T&TA) for payment of Basic Excise Duty on exports. (ii) The applicants further submit that it is an admitted position that the processed fabrics are exempted from the payment of AED (T&TA). So, there is no way in which the manufacturers will be in a position to utilize the accumulated Cenvat credit of AED (T&TA) in respect of the processed fabrics. In spite of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons cited by the applicants was not applicable to the facts obtained in the present case, are erroneous in law. The applicants reiterate that the issue is covered by the Hon'ble Bombay High Court decisions and several Tribunal decisions mentioned hereinunder. The said order is required to be set aside on this ground also. (i) Commissioner of Central Excise, Mumbai-II v. D.C. Polyesters Pvt. Ltd. [2004 (166) E.L.T. 472 (Tri.-Mumbai)] (ii) Commissioner of Central Excise, Mumbai-II v. D.C. Polyesters Pvt. Ltd. [2004 (176) E.L.T. 471 (Tri.-Mumbai)] (iii) MRF Ltd. v. Commissioner of Central Excise, Hyderabad [2004 (171) E.L.T. 465 (Tri.-Bang.)]. 5. Personal hearing scheduled in this case on 7-8-2013 at Mumbai was attended by Shri R.G. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Rule 3(4) provides for manner of utilization of Cenvat credit availed. The Rule 3(7)(b) of said rules stipulated that Cenvat credit of AED (T&TA) shall be utilized towards payment of duty of excise or as the case may be of service tax leviable under the said Additional Duties of Excise (Textiles & Textile Articles) Act, 1978 on any final products manufactured by the manufacturer or for payment of such duty on the inputs themselves if such inputs are removed as such or after being partially processed or any output service. The provisions of said Rule 3(7)(b), does not permit the utilization of Cenvat credit of AED (T&TA) towards payment of Basic Excise Duty. 9.1 Applicants have relied upon C.B.E. & C. Circular dated 22-3-2007. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of said circular. Applicant was entitled for refund under Rule 5 subject to compliance of condition/procedure laid down therein. But, there was no provision under the rules for payment of basic excise duty from such Cenvat credit of AED (T&TA). Applicant has given his own interpretation which suits him and it cannot be accepted being contrary to the provisions of rule 3(7)(b) of Cenvat Credit Rules, 2004 and C.B.E. & C. Circular dated 22-3-2007 cited above. The letter dated 5-5-2010 issued by ACCE is contrary to the above said provision of law and therefore the said letter is void ab initio as held by Commissioner (Appeals). 9.3 Applicant has cited number of case laws. On perusal of said case laws, it is observed that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
