9911796707
TMI Blog2024 (6) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... re of Boora, falling under chapter sub-heading 1701.99 and Batasha, Mishri& Makhana, falling under Chapter Sub-Heading 1704.90 of Central Excise Tariff Act, 1985. The department noted that the activity of manufacturing of Batasha, Mishri& Makhana amounted to 'manufacture' as defined under Section 2(f) of the Central Excise Act, 1944, and the appellant had cleared these goods, valued at Rs. 66,42,83,255/- during the period 01.08.2003 to 31.03.2008 under Rule 11 of Central Excise Rules, 2002 without payment of duty amounting to Rs. 2,35,91,7741-. It was also noted that the appellant was not registered under Central Excise. 2.1 A show cause notice dated 26.08.2008 was issued charging the appellant with manufacturing the excisable goods without having Central Excise registration and suppressing the production valued at Rs. 66,42,83,255/- during the year 2003-2004 to 2007-08 (upto August, 2007) and clearing the same without payment of appropriate duty amounting to Rs. 4.21,92,338/- (BED Rs. 3,51,20,425/- AED Rs. 34,01,915/+ Sugar Cess Rs. 27,53,304/- + Edu. Cess Rs. 7,82,211/- + SHE Cess Rs. 1,28,483/-). The said show cause notice was adjudicated vide Order-in- Original No. 24/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased during the relevant period 01.08.2007 to 30.06.2008 and used in the manufacture of final products held liable to levy of Central Excise duty, and denial of Cenvat credit amounting in respect of opening stock of sugar as on 01.08.2007, the date from which the duty liability has been determined, the present appeal is before this Tribunal. 3. The Revenue has also filed an appeal against the impugned Order-in-Original dated 20.09.2022 on the following grounds:- (a) Whether the Adjudicating Authority has erred in appreciating that the issue of eligibility of Sugar Cess as CENVAT credit in terms of CENVAT Credit Rules 2004, has yet to attain finality in view of pendency of Civil Appeal No. 1531/2016 filed by the Revenue in the case of Commissioner v. Shree Renuka Sugars Ltd. 2016 (335) ELT A77 (SC). (b) Whether the Adjudicating Authority had erred in allowing CENVAT Credit of Sugar Cess amounting to Rs. 8,94,760/- to determine net duty liability of the Noticee in spite of the legal position defined under Rule 3 (1) of the CENVAT Credit Rules 2004, in which Sugar Cess has not been specified as eligible duty/levy for availment of credit. 4. The Learned Counsel appearing on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Accountant. In support of his submissions, the learned counsel relied upon the following circular and decisions:- (i) CBIC Instruction F. No. 390/Misc./116/2017-JC dated 22.08.2019 (ii) Commissioner of Central Excise, Customs & Service tax, Belgaum vs. Shree Renuka Sugars Ltd. 2014 (302) ELT 33 (Kar.) (iii) Tvs Motors Co. Ltd. Vs. Union of India 2015 (323) ELT 57 (Kar.) (iv) BanswaraSyntex Ltd. Vs. Union of India 2007 (216) ELT 16 (Kar.) (v) Bengal Beverages Private Limited vs. Commissioner of CGST, Central Excise, Howrah 2022 (381) ELT 84 (Tri.-Kolkata) (vi.) Union of India vs. Kamlakshi Finance Corporation Limited 1991 (55) ELT 433 (S.C.) Accordingly, the learned Counsel prayed for setting aside the impugned order and allowing the appeal. 5. Per contra, Learned Authorized Representative for the Revenue submitted that the adjudicating authority has allowed Cenvat credit of Rs. 45,43,667/- only in cases where original invoices had been submitted by the appellant. Rule 9 of Cenvat Credit Rules, 2004 specifies the documents and accounts for the purpose of availment of Cenvat credit. The photocopies of invoices and illegible invoices are not the proper documents for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of CGST, Central Excise - Jabalpur Vide Final Order No. 50793/2019 dated 24.06.2019 Learned Authorized Representative for the Revenue prayed for dismissing the appeal of the assessee and allowing the appeal of the Revenue. 6. On the other hand, the Learned Counsel for the Respondent (in Appeal No. 54723 of 2023) has submitted that the departmental appeal is liable to be dismissed being not maintainable on the ground of revenue limit as the present appeal filed by the Department involves revenue of Rs. 8,94,760/ which is well below the threshold monetary limit of Rs. 50.00 lacs for filing appeal by the revenue before the CESTAT, as prescribed vide CBIC Instruction F. No. 390/Misc/116/2017-JC dated 22.08.2019. He submitted that the departmental appeal to deny Cenvat credit of sugar cess in the present case solely on the ground that the issue has not attained finality in view of the pendency of Civil Appeal No. 1531/2016 filed by the Revenue before the Supreme Court challenging the judgement of Hon'ble Karnataka High Court in the matter of Commissioner v. Shree Renuka Sugars Ltd. -2014 (302) E.LT. 33 (Kar.). He contended that the High Court, while relying upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t admissible (In Rs.) As per submissions in adj proceedings for the period 29.08.2007 to 30.06.2008 As per the OIO-20.09.2022 for the period 01.08.2007 to 30.06.2008 BOORA MAKHANA MISHRI Total BOORA MAKHANA MISHRI Total 1 2 3 4 5 6 7 8 Aug/07 280 220 152 652 21916.67 19181.33 13594 54692 Sep/07 2910 2200 1665 6775 Oct/07 3075 2198 1590 6863 Nov/07 3010 2210 1700 6920 Dec/07 2320 2212 1550 6082 Jan/08 2050 2240 1490 5780 Feb/08 1825 2170 1550 5545 Mar/08 2525 2209 1776 6510 Sub- total-I 17995 15659 11473 45127 21916.67 19181.33 13594 54692 Apr/08 12115 6421 6718 25254 12115 6421 6718 25254 May/08 Jun/08 G.Total 30110 22080 18191 70381 34032 25602 20318 79946 As per the Actuals/CA Certificate for the period 01.08.2007 to 30.06.2008 Difference between figures as per the OIO and actual as per the appellant for the period 01.08.2007 to 30.06.2008 &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learances figures for the period 01.08.2007 to 30.06.2008 has been certified by the Chartered Accountant. The department had not led any evidence to hold that this CA Certificate was incorrect or fraudulent. 7.2. In view of the above, we are of the opinion that the Commissioner has erred in determining the duty resulting of excess duty liability of Rs. 2,67,656/-. Accordingly, we hold that the total duty determined is liable to be reduced by this amount. 8. We now address the second issue relating to disallowance of the cenvat credit of Rs. 12,54,609/-.It has been submitted by the learned counsel that the originals of the relevant purchase invoices had been submitted before the jurisdictional Assistant Commissioner for determination of the amount of Cenvat credit admissible to them in compliance of the directives given by the Commissioner, Central Excise vide the order-in-original dated 21.05.2012. However, it has also been submitted that the original copies of some of the purchase invoices had been misplaced and the appellant was not position to furnish the original copies. It has also been submitted by the ld. Counsel that the appellant had his statutory books examined by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me cases, it is noted that the appellant only had photocopies of the purchase invoices on which credit was denied. However, the receipt and utilization of inputs for the specified purpose has not been disputed nor has the department led any evidence to establish that the input was not received or was not duty paid. In view of the same, we are of the opinion that the Commissioner had erred in disallowing this part of the cenvat credit. 9. We now take up for consideration the issue relating to Cenvat Credit of Rs. 7,30,933.00 on duty paid stock of 8389.00 Quintals of sugar lying as on 01.08.2007. 9.1 We find that it has been submitted to us that the appellant had opening stock of 8389.00 Quintals of Sugar as on 01.08.2007, the date from which duty liability has been imposed. It was further submitted that 8389.00 quintals of sugar was used in the manufacture of final products which was cleared during the period of 01.08.2007 to 30.06.2008 for which duty liability has been demanded. The contention of the appellant is valid. The adjudicating authority has rejected the claim stating as follows:- "10.6 The assessee has also contested that the credit of duty paid on inputs lying as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of Chartered Accountant's certificate, copies of their balance sheet for the relevant period as well as supporting evidences to substantiate their claim. We hold that the adjudicating authority has erred in ignoring the cogent evidences led before it. We find that the Tribunal in several decisions has held that once the appellant has submitted sufficient evidence along with the CA certificate to substantiate their claim, the onus shifts to the Revenue to disprove the same. Some of the decisions are as follows: (i) Commissioner of Customs vs KVN Impex -(2024) 16 Centax 363 (Tri.-Bang) (ii) Man Truck & Bus Pvt Ltd., vs Commissioner, Indore- 2021 (375) E.L.T. 590 (Tri. - Del.) 10. We now consider the issue that arises from the appeal filed by the Department regarding the admissibility of credit of Sugar Cess. The Department has submitted that the adjudicating authority had erred by placing reliance on the decision of the Karnataka High Court in the case of Commissioner v. Shree Renuka Sugars Ltd. - 2014 (302) ELT 33 (Kar.) which has allowed Cenvat credit on sugar cess. It has been stated that the department has subsequently challenged this decision before the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mentioned in Rule 3 of the Cenvat Credit Rules, is concerned, the answer is found in Section 3 of the Central Excise Act, 1944 which is the charging Section. It reads as under : "3. Duties specified inthe Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levied. - (1) There shall be levied and collected in such manner as may be prescribed - (a) a duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods (excluding goods produced or manufactured in special economic zones, which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods (excluding goods produced or manufactured in special economic zones) specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule; 29. Section 37 in Clause (2) and sub-clause (xvia) provide for the credit of duty paid or deemed to have been paid on the goods used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim Cenvat credit in respect of the cess paid as additional duty (CVD) on raw sugar imported under the Sugar Cess Act of 1982 read with Section 3 of the Customs Tariff Act, 1975. Therefore, the substantial question of law is answered in favour of the assessee and against the Revenue. There is no merit in this appeal. Hence, we pass the following : ORDER 42. Appeal dismissed. No costs." 11. We find that coordinate bench of the Tribunal in similar facts and circumstances has allowed the Cenvat credit on sugar cess in the case of M/s Diamond Beverages Private Limited vs Commissioner of Central Goods, Service Tax and Central Excise, Kolkata [(2023)9 Centax 373 (Tri.-Cal.)]relying upon the decision in Bengal Beverages Private Limited vs. Commissioner of Central Goods, Service Tax and Central Excise, Howrah[2022 (381) ELT 84 (Tri.-Kolkata)]wherein it was held as under:- 9. We find that the substantial question of law considered by the Hon'ble Karnataka High Court in Renuka Sugar case is set out at Para 6 thereof, which is as follows :- "Whether the assessee is entitled for Cenvat credit, on the Sugar Cess under Section 3(4) of the Sugar Cess Act, 1982 as the same is not one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court to which Hon'ble High Court took a serious view. It may be noted that on the subject of consequential refund, where the department has gone in appeal, there already exists a Circular No. 695/11/2003-CX., dated 24-2-2003 [2003 (152) E.L.T. (T42)]. This circular of the Board is binding on all field officers. Had this circular been followed in the case, unnecessary litigation as well as adverse observation of the Hon'ble High Court could have been avoided. This circular is once again brought to the notice of field officers with direction that it is followed scrupulously. 3. The judgment of Hon'ble High Court in M/s. Dupont case (supra) under reference may be perused by the field officers for complete understanding of the issues involved and directions of the Hon'ble High Court on need to follow judicial discipline. Judgment of the Hon'ble Supreme Court in case of Union of India v. Kamlakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (S.C.) = 2002-TIOL-484-SC-CX-LB] may also be perused as this is an authoritative pronouncement on the issue and has also been cited by the Hon'ble High Court. 4. The contents of this instruction may be brought to the notice of all Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
