9911796707
TMI Blog2023 (3) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, it is not in dispute that the job worker was liable to pay duty, if he did not avail the benefit of Notification No. 214/86, as the intermediate product manufactured by them was dutiable and availment of Notification No.214/86 is not mandatory. Thus, the respondent had correctly taken the credit of the duty paid by the job worker and they are also entitled to CENVAT credit of CVD paid on such inputs. It is a case of double payment of duty on same inputs. The payment of duty twice is not disputed, thus, it would be unfair and against the scheme of CENVAT to deny credit of said duty. This aspect has already been considered by the High Court of Gujarat in COMMR. OF C. EX., AHMEDABAD-I VERSUS ROHAN DYES INTERMEDIATED LTD. [ 2013 (4) TMI 277 - GUJARAT HIGH COURT ] where it was held that the CENVAT credit is admissible to principal manufacture of the duty paid by the job worker, even if the credit was availed earlier on receiving the inputs, specifically when it is not disputed that the job worker had not taken any credit in respect of inputs imported by the respondent. There are no substantial question of law arises out of the present appeal - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent then availed CENVAT credit on the job worked goods on the strength of such invoice-cum-delivery challans, as issued by the job worker. In the backdrop of these facts, the department concerned concluded that the respondent has availed CENVAT credit (duty + education cess) amounting to Rs.2,04,31,581/- on the basis of invoices-cum-challans, as issued by job worker, and, again Rs.1,78,93,790/- on the basis of B/E for the same inputs, during the period from 23.9.2003 to 29.3.2005. Considering the respondent to have taken double CENVAT credit, in contravention of Rule 3 of CENVAT Credit Rules, 2002/2004, read with Notification No. 214/86- CF dated 23.3.1986, a show cause notice was issued by the appellant to the respondent on 16.9.2005/ 21.9.2005. 3. Vide order dated 31.3.2006 (Annexure A/2), the Commissioner, Central Excise, disallowed the CENVAT credit of Rs.1,78,93,790.00, as availed and utilised by the respondent, and, ordered recovery of the abovesaid amount from the respondent. Moreover, the Commissioner, while disallowing the CENVAT credit to the respondent, held that the respondent had taken the credit on the same inputs and therefore, disallowed the CENVAT credit amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of CVD paid on imported raw materials as well as excise duty paid by Lucas on the intermediate products does not lead to the conclusion that they had not suppressed the fact that they had disclosed the fact that they took credit of duty paid on materials which were not their inputs and were not utilized the same in the manufacture of their final products. From the return it can not be known whether a particular material is the input or not. The return is a declaration made by an assessee in respect of inputs, final product, credit taken, goods manufactured etc and if the assessee mis-declares a product as input then it tantamounts to misdeclaration and suppression of facts." 4. Being aggrieved with the order (supra), the respondent had preferred a statutory appeal before the learned Customs, Excise & Service Tax Appellate Tribunal. The Tribunal, while relying upon the judgment passed by the High Court of Gujarat, in the case of CCE, Ahmedabad-I vs Rohan Dyes & Intermediated Ltd., 2012 (284) ELT 484 (Guj), held that the CENVAT credit is admissible to principal manufacture of the duty paid by the job worker, even if the credit was availed earlier on receiving the inputs, specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the dutiable final products, and thus, the CENVAT credit of CVD, as paid on the imported raw materials, has rightly been availed. He further submitted that the imported raw materials were directly sent to the job worker, who thereupon, discharged duty liability on the intermediate goods, without availing CENVAT credit of CVD, as paid on imported materials. The duty paid by the job worker on the intermediate products, and, the CVD duty paid on imported materials, availed as credit by the respondent, was in accordance with law. 9. Before we proceed to consider the submissions, as made by both the learned counsels for the parties, it is apt to first analyze the relevant Rules. Rule 3(1) of the CENVAT Credit Rules, 2004 is reproduced as under:- RULE 3. CENVAT credit. -- (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of - (i) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act; (ii) the duty of excise specified in the Second Schedule to the Excise Tariff Act, leviable under the Excise Act; (iii) the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT credit. -- (1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. (5) (a) The CENVAT credit shall be allowed even if any inputs or capital goods as such or after being partially processed are sent to a job worker for further processing, testing, repairing, reconditioning [or for the manufacture of intermediate goods necessary for the manufacture of final products] or any other purpose, and it is established from the records, challans or memos or any other document produced by the manufacturer or provider of output service taking the CENVAT credit that the goods are received back in the factory within one hundred and eighty days of their being sent to a job worker and if the inputs or the capital goods are not received back within one hundred eighty days, the manufacturer or provider of output service shall pay an amount equivalent to the CENVAT credit attributable to the inputs or capital goods by debiting the CENVAT credit or otherwise, but the manufacturer or provider of output service can take the CENVAT credit again when the inputs or capital go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed ultimately when the final product is removed from such manufacturers' factory. The appellant therein further contended that as far as the appellant (the intermediate purchaser) was concerned, it was not liable to pay duty on the inputs supplied by TELCO since it had not taken credit for modvat in respect of those inputs nor could value of the inputs be added to the excisable value of the assemblies. 12. In such case, the Supreme Court made the following observations: "We are of the view that the submission of the appellant is correct. The Tribunal appears to have been confused between the manufacture of the final product, namely, excavators and the manufacture of the intermediate product, namely, the floor plate assemblies. The scheme of Modvat permits the person who clears the ultimate final product to take the benefit of the Modvat scheme at the time of clearance of such final product. The manufacturer of the final product, in this case TELCO, would therefore, be entitled not only to adjust the credit on the inputs supplied by it to the intermediate purchaser such as the appellant but also to the credit for the duty paid by the intermediate purchaser on it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
