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TMI Blog2023 (8) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order on the ground of non-inclusion of transportation charges is not sustainable. Denial of Cenvat credit of Rs.56,84,435/- taken by the Appellant on the CPC received from UHCL, on the ground that it was not an input, we observe that the department has not questioned the duty payment by UHCL on the CPC - HELD THAT:- In the present case, the Appellant has paid much more central excise duty than the CENVAT Credit availed by them on the CPC received from UHCL. Therefore, CENVAT credit availed cannot be denied on the ground that they were not inputs. Even if they were considered as inputs , Rule 3(5) of CENVAT Credit Rules, 2004 provides that when inputs on which CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs. In the present case, the Appellant has paid much more central excise duty than the CENVAT Credit availed by them on CPC received from UHCL which would be clear from the statement annexed to the compilation. In that event, the Appellant cannot be asked to reverse the CENVAT Credit once ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers attract central excise duty @ 16%, amounting to Rs. 15,22,175/. It was also alleged by the Audit that CPC received by the Appellant from UHCL has been entered by the Appellant as a final product in RG-1 register and therefore, CENVAT credit of Rs. 56,84,435/- taken by them on the CPC received from UHCL is not admissible as the same is not input. 4. On the basis of the said Audit Report, a Show Cause Notice dated 30.06.2009 was issued to them central excise duty of Rs.15,22,175/- on the alleged ground of non-inclusion of transportation charges in the value of final products . It was also proposed to deny the cenvat credit of Rs.56,84,435/- taken by them on the CPC received from UHCL, as it was not an input. The Notice also proposed to levy interest and impose penalty. The Notice was adjudicated by the Adjudicating Authority vide Order-in-Original dated 26.08.2011 wherein the demands made in the Notice were confirmed along with interest and penalty. Aggrieved against the impugned order, the Appellant has filed the present appeal. 5. Regarding the allegation of wrong availment of Cenvat Credit amounting to Rs. 56,84,436/-, the Appellant stated that once the duty has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked when there is no suppression of facts on their part. Accordingly, they prayed for setting aside the demands confirmed in the impugned order. 7. The Ld. A.R. reiterated the findings in the impugned order. 8. Heard both sides and perused the appeal records. 9. We observe that there are two issues in the present appeal. The first issue is non-inclusion of transportation charges in the assessable value amounting to Rs.15,22,175/- confirmed in the impugned order along with interest and penalty equal to amount of duty. We find that the issue is no longer res integra inasmuch as the same stands settled in favour of the Appellant by this Tribunal in the case of Aditya Birla Chemicals (India) Ltd. Vs Commissioner of Central Excise reported in 2021 (376) E.L.T. 390 (Tri. - Kolkata)]. The relevant Paras of the said decision is reproduced below: 7. The issue before us is whether the appellant can claim exclusion of the freight amount from arriving at the assessable value for the purpose of payment of central excise duty . We have perused the decisions rendered by the Apex Court in the cases of Escorts JCB, Roofit Industries as well as Ispat Industries (Supra). The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to the buyer s premises. 17. It is clear, therefore, that as a matter of 17. law with effect from the Amendment Act of 28-9-1996, the place of removal only has reference to places from which the manufacturer is to sell goods manufactured by him, and can, in no circumstances, have reference to the place of delivery which may, on facts, be the buyer s premises. 8. In the instant case before us, the issue whether or not place of removal can be manufacturer s premises or buyer s premises has since been settled by the Apex Court in Ispat Industries (Supra), which has to be respectfully followed for the purpose of assessment of duty as per law. [Emphasis Supplied] 10. Following the ratio of the decision cited above, we hold that the transportation charges are not includable in the assessable value. Accordingly, the demand of central excise duty of Rs.15,22,175/- confirmed in the impugned order on the ground of non-inclusion of transportation charges is not sustainable. 11. Regarding the second issue of denial of Cenvat credit of Rs.56,84,435/- taken by the Appellant on the CPC received from UHCL, on the ground that it was not an input, we observe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty which was more than credit taken, Modvat credit cannot be denied on the ground that the processes undertaken by the assessee did not amount to manufacture. 12 . The Tribunal in the impugned judgment has also recorded that it is admitted fact that the assessee paid duty when they cleared final output. Such duty was more than the credit taken. 13 . In view of above situation, we find no merits in the appeal. We therefore, answer the question in the affirmative i.e. against the Revenue and in favour of the assessee. [Emphasis Supplied] 12. Following the decision of the Hon ble Gujarat 7High Court, we hold that the credit availed by the Appellant cannot be denied on the ground that it has been entered as finished goods in their RG-1 and hence it is not an input. 13. In view of the above discussion, the demands confirmed in the impugned order are liable to be set aside and accordingly we do so. Since the demand itself is not sustainable, the question of charging interest or imposing penalty does not arise. 14. In view of the above, discussion, we allow the appeal filed by the Appellant with consequential relief, if any as per law. (Dictated and pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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