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TMI Blog2023 (9) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value of the tin containers. We find that the issue is no longer res integra. Hon'ble Apex Court in the case of JAUSS POLYMERS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT [ 2003 (9) TMI 87 - SUPREME COURT] held that since the drums were supplied by the buyer and were not supplied by the manufacturer, their cost cannot be included. The appellant has not violated any provisions of either CENVAT Credit Rules, 2004 or the conditions of Notification No. 56/2002. The appellants did not avail cash refund in some months and in some months, they availed refund less than the upper limit of 39%. This goes to prove the bona fides of the appellant - the appellants are not required to include the cost of packing material supplied free by the appellant in the assessable value of the tin containers manufactured and cleared by them. Therefore, the demands raised and confirmed thereof; penalties imposed are not sustainable. Appeal allowed. - Mr. S. S. GARG, MEMBER (JUDICIAL) AND Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri P.L. Patel, Shri Sachin Chitnis and Shri Viraj Reshamwala, Advocates for the Appellants Ms. Shivani, Authorised Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the Government, is not correct as in some months (March 2011,June 2011, and March 2012) no duty was paid to the PLA. He submits that the notification is a beneficial notification to encourage setting up of industries in specific areas and as such credit cannot be denied for procedural, technical mistakes. He relies on the following cases: STEEL AUTHORITY OF INDIA LTD. - 2013 (287) E.L.T. 321 (Tri. - Del.) SGS INDIA PVT. LTD.-2011 (270) E.L.T. 115 (Tri. - Mumbai) TRANSFORMERS RECTIFIERS- 2010 (262) E.L.T. 983 (Tri. - Ahmd.) MEDLEY PHARMACEUTICAL LTD.- 2019 (21) G.S.T.L. 522 (Tri. - Chan.) SHREE NATH INDUSTRIES- 2018 (364) E.L.T. 904 (Tri. - Chan.) NEW INDIA WIRE CABLES- 2008 (232) E.L.T. 681 (Tri. - Del.) NARMADA CHEMATUR PHARMACEUTICALS LTD.- 2005 (179) E.L.T. 276 (S.C.) 3. Learned Counsel further submits that the department has accepted the methodology followed by the appellants and has duly sanctioned the refund claims for the earlier period. He relies on Hon ble Supreme Court Judgement in the case of Novapan Industries 2007 (209) ELT 161 (SC) and he also submits that as held by the Hon ble Supreme Court in the case of Sambhaji v/s Gangabai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, it appears that though the word immediately is used in the RULE 4, there appears to be no outer time limit prescribed for availing CENVATCredit. We find that the very same issue was deliberated by the Tribunal in the case of Steel Authority of India Ltd. (supra) and Tribunal concluded that: 8 . From a plain reading of the above provisions, it is clear that what the Rules prescribes is that a manufacturer can avail Cenvat credit in respect of certain inputs immediately on their receipt and there is no time limit period prescribed in these rules in this regard. The word may in sub-rule (1) of Rule 4 cannot be read as shall . The Department s contention would have been correct if sub-rule (1) of Rule 4 had provided that Cenvat credit in respect of inputs shall be taken immediately on receipt of the inputs. We, therefore, agree with para 10 of the Board s Circular No. 345/2/2000-TRU, dated 29-8-2000 in this regard which is reproduced below :- 10. Rule 57AC provides that Cenvat credit may be taken immediately on receipt of the inputs in the factory. Some apprehensions have been expressed that if the Cenvat credit is not taken immediately , like within 24 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat wherein whatever duty has been paid in cash is refundable. Admittedly, the appellant has not claimed refund of Cenvat credit available to them. In that circumstances, it is revenue neutral situation, therefore, there was no requirement to issue show cause notice to the appellant. We further taken note of the fact that the demand has been raised against the appellant under Section 11A of the Central Excise Act, 1944. As per the said provision, if the appellant has not paid duty/short paid duty/erroneously refunded of duty is recoverable. In this case, it is the case of the Revenue itself that they were not required to pay duty, therefore, the excess amount paid by the appellant is merely a deposit not a duty. Hence, the provisions of Section 11A of the Act, is not applicable to the case. In that circumstances, the appellant is not required to pay the excess refund claimed by them. 8. We also find that as pleaded by the appellant, the department has accepted the procedure followed by the appellants in an earlier refund case; it cannot take a contrary stand in the subsequent cases. We find that Hon ble Supreme Court in the case of Novapan Industries Ltd. (supra) held that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in ICI India case (supra), we do not find any merit in these appeals and dismiss the same with no order as to costs. 9. We find that the Revenue seeks to include the value of cardboard boxes supplied free of cost by the customer to be included in the assessable value of the tin containers. We find that the issue is no longer res integra. Hon'ble Apex Court in the case of Jauss Polymers Ltd. (supra) held that: 5. The situation arising in this case is exactly the same as what was considered by this Court in Hindustan Polymers v. Collector of Central Excise and in that decision Justice Ranganathan; who delivered a separate but concurring judgment analysed Section 4(4)(d)(i) of the Act and stated that three kinds of situation may arise and stated as follows : .......Where the manufacturer supplies his own container or drum but does not charge the customer therefor, then the price of the goods will also include the cost of the container. There will be no question of separate addition to the sale price nor can the assessee claim a deduction of the cost of packing from the sale price except where the container is a durable one and is returnable to the manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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