9911796707
TMI Blog2022 (11) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... liance Industries Ltd. against invalidation of advance authorization under various advance licenses. Against such payment of duty by M/s. Reliance Industries Ltd., the appellant has availed cenvat credit during the period August-2010 to October-2010. The case of the department is that the purchase against advance authorization are exempted under para 4.1 of FTP 2009-14 which enables duty free import of inputs required for production of goods to be exported. Therefore, the duty paid by M/s. Reliance Industries Ltd. is incorrect consequently, the appellant are not entitled for the cenvat credit. Accordingly, the adjudicating authority demanded the amount of cenvat credit vide Order-In-Original dated 31.07.2012. Being aggrieved by the said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty payment on the part of the supplier cannot be disputed at the end of the recipient of the input therefore, there is no reason to deny the cenvat credit once the duty paid inputs were received by the appellant. The particular issue that in case of advance license, whether the duty payment is available as cenvat credit has been considered in the case of DCM SHRIRAM CONSOLIDATED PVT. LTD.(supra) wherein, the following judgment was passed :- 4. In the instant case, it appears that the assessee-respondents have availed and utilized the Cenvat credit during the period from 1-2-2007 to 31-3-2007 on the duty paid indigenous inputs procured against the invalidated Advance Licence. The issue pertaining to the Notification No. 44/2001-C.E. (N.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs. That exercise has nowhere been done. If the department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into 'deposit of duty'. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act. Insofar as the respondent is concerned, he had purchased the inputs and utilised the same for manufacture of a final product. Such goods were duty paid. Rule 3 and 4 of the Cenvat Credit Rules, 2004, thus would enable him to avail the cenvat credit. It is a different thing that the supplier of the goods to the respondent paid excise duty on such product under mistaken belief. In law as declared by the Supreme Court in case of Collector of Central Excise, Patna. v. Tata Iron and Steel Co. Ltd (supra), no duty was payable on such product. Strictly speaking therefore, such amount deposited by the original manufacturer would not partake the character of excise duty. However, when the department did not dispute the classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as payable or otherwise the same cannot be disputed at the end of the recipient of input accordingly, the cenvat credit cannot be disputed.
05. Considering the above judgment, we are of the clear view that in the present case duty was paid by M/s. Reliance Industries Ltd. against invalidation of advance authorisation, the cenvat credit to the appellant is admissible. Accordingly, the impugned order is set aside. As regard the appeal against the personal penalty filed by Shri Ramesh Pawle, we find that since the demand itself is not sustainable, the penalty being consequential will also not sustain. Accordingly, the penalty is set aside. Both the appeals are allowed.
(Pronounced in the open court on 15.11.2022) X X X X Extracts X X X X X X X X Extracts X X X X
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