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TMI Blog2021 (8) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal, is directed to be refunded along with interest in accordance with law. The interest is held payable u/s 35FF from the date of deposit to the date of Refund @12% p.a. - appeal allowed. - Excise Appeal No.70019 & 70020 of 2020 - FINAL ORDER NO. 70186-70187/2021 - Dated:- 4-8-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Nishant Mishra for the Appellant Shri Anupam Kumar Tewari, Authorised Representative for the Respondent ORDER The issue in these appeals is whether exemption is rightly called for the goods manufactured by the appellant under order received from BHEL which were to be finally used for mega/super power, projects owner- Damodar Valley Corporation, in view of the exemption availed under Notification No.06/2006-CE dated 01.03.2006. Further, in view of the exemption availed and upheld by the learned Commissioner (Appeals) vide Order-in-Appeal dated 13th September, 2010 (which have attained finality as no further appeal was filed by Revenue), thus the cenvat credit on the inputs for output- products supplied to BHEL was rightly taken. 2. Further the issue is whether Rules 14 was rightly invoked by Revenue demanding reversal of cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate Contract, Appellant was instructed by BHEL to claim cenvat credit and also avail exemption in respect of the goods-meant for use in projects under International competitive bidding under Notification No. 6/2006-CE dated 1.3.2006. 7. In pursuance to the aforesaid Rate Contracts, Appellant was provided inputs by BHEL/its vendors on invoices evidencing payment of duty. Upon receipt of duty paid inputs, Appellant took cenvat credit of the duty paid on inputs. The fabricated goods were then supplied by Appellant to BHEL, without payment of duty by claiming exemption under Notification No. 6/2006-CE dated 1.3.2006. 8. However, Appellant was directed by Range Superintendent to reverse the credit taken, since in his opinion, no duty was paid on the final products and hence Appellant was not eligible for claiming cenvat credit on inputs. Following the directions, Appellant while filing ER-1 returns for the months of Oct 2008, Dec 2008 Jan 2009, reversed cenvat credit in respect of inputs used for BHEL. As Appellant was not aware of the phraseology to be used for such reversal, Appellant mentioned the words: a) Oct 2008: Duty reverted on inputs- as such b) Dec 2008: D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n statutory appeal before Ld. Commissioner (Appeals) and by Order-in-Appeal No. 470-CE/APPL/KNP/2010 dated 13.9.2010, the appeal filed by Appellant was allowed and it was held that benefit of exemption Notification No. 6/2006-CE dated 1.3.2006, as amended, is available to the Appellant. 14. The aforesaid Order-in-Appeal dated 13.9.2010 was accepted by Revenue and the same was not challenged, hence the findings recorded in the Order-in-Appeal dated 13.9.2010 have become final and binding between the parties. 15. Further once the final product cleared by Appellant to BHEL, was held to be rightly exempted, Show Cause Notice dated 21.9.2010 was issued alleging that during the months of Oct 2008, Dec 2008 Jan 2009, Appellant has cleared goods and recovered credit of cenvat describing the same as duty reversed on input as such and thus Appellant had rightly reversed CENVAT Credit on inputs cleared as such. It was further alleged that suo-moto credit taken by the Appellant, is contrary to law and hence CENVAT Credit amounting to ₹ 18,86,116/- along with interest and penalty is liable to be recovered for the Appellant (For Mega Power Project). 16. The aforesaid show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and then on the issue of Suo-moto taking of credit. 22. In remand proceedings, Appellant filed submissions vide letter dated 6.12.2018, reiterating that the Appellant had received input material from BHEL for manufacturing and processing as per the Job Work order, and have supplied after processing the same and converting them into different shapes and size as per the specification mentioned in the Job Work order to BHEL/DVC. The Appellant further submitted that the issue of benefit of exemption Notification No. 6/2006 dated 1.3.2006, as amended has already been allowed by Ld. Commissioner (Appeals) vide order dated 13.09.2010 and the same has also attained finality. Thus the debit entry made by the Appellant, was not in fact required to be made and thus the suo-moto credit taken subsequently by the Appellant is merely a correction of accounts, as observed by this Tribunal vide order dated 14.11.2017. As appeal filed by appellant was allowed and demand was set-aside, hence appellant also filed application for refund. 23. By Order-in-Original (in refund proceedings) dated 2.2.2019, the Adjudicating Authority rejected the refund claim of the Appellant by holding that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds fabricated by the appellant were actually supplied through BHEL, who are the bidders in International Competitive Bidding, then the appellant was entitled for benefit of exemption notification. This Tribunal in CST Ltd. v. Commissioner of Cus. C. Ex. Hyderabad-I 2007 (217) ELT 513 (Tri-Bang.) and CST Ltd. v. Commissioner of Central Excise, Hyderabad 2008 (230) ELT 85 (Tri-Bang.) has consistently held that goods supplied by sub-contractor to main contractor who is executing mega (project by International Competitive Bidding), is entitled to benefit of similar exemption notifications. 29. Even otherwise, the benefit of the exemption notification, was earlier sought to be denied by the revenue, but on appeal, Ld. Commissioner (Appeals) by O-I-A dated 13.09.2010 decided the issue in favour of the appellant and against the revenue. The said order dated 13th September, 2010 of Commissioner (Appeals) was accepted by revenue, as the same was not challenged by revenue in further appeal. In this view of the matter, it cannot be disputed by the revenue that the condition of exemption notification is not satisfied in respect to fabricated goods supplied, through BHEL. Further, dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent to reverse credit on the reasoning that final product was exempted, the appellant used these words for reversing credit. In my opinion, when credit was legally admissible to the appellant and reversal of credit was not required, then use of words inputs removed as such would not be fatal for the appellant, more particularly when it is not the case of revenue that any inputs were removed as such by the appellant. On the contrary, the admitted case of the revenue was that appellant was not entitled for benefit of exemption notification and it was only when the appellant succeeded in appeal before Commissioner (Appeals), this objection was taken by the revenue for the very first time. 35. Heard the Ld. DR for Revenue, who relies on impugned orders. 36. Having considered rival contentions, I find as regards, finding of Commissioner (Appeals) that credit can only be taken on the strength of documents prescribed under Rule 9(1), the same cannot be disputed. However, Rule 9(1) applies when the appellant took credit for the first time, before reversing the same on the instructions of the Superintendent. When the appellant took suo-moto re-credit, the same amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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