M\/s Shri Vitthalsai S.S.K. Ltd. Versus Commissioner of GST & Central Excise, Aurangabad
Central Excise
2018 (10) TMI 1153 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 17-10-2018
E\/86639 & 86655\/2018 – A\/87647-87648\/2018
Central Excise
Shri Ajay Sharma, Member (Judicial)
\nFor the Appellant : Shri H.S. Shirsat, Consultant
\nFor the Respondent : Shri A.B. Kulgod, Assistant Commissioner (AR), Shri M.R. Melvin, Superintendent (AR)
\nORDER
\nPER: AJAY SHARMA
\nThese appeals have been filed against the Order-in-Appeal Nos. NGPII\/
\nAPPL\/17\/2017-18 dated 08.03.2018 & NGP-II\/APPL\/21\/2017-18 dated 09.03.2018 passed by the Commissioner, CGST & Central Excise, Nagpur-II.
\n2. The brief facts of the matter is that the Appellant is engaged in manufacture of Sugar & Molasses and they are availing facility of CENVAT credit under CENVAT Credit Rules, 2004, for input and capital goods credit as well as input service credit. During the course of manufacture of dutiable Sugar & Molasses<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n Act, 1944 read with Rule 14 of CENVAT Credit Rules, 2004. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 9 (233) ELT 301 (HC-Bom.) = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e 6 read as under:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n into existence during the crushing of the sugarcanes and is an unavoidable agricultural waste. For two reasons the Board's Circular dated 25.04.2016 has no application on the facts of the instant case, firstly no Circular can override the Rules as well as the law laid down by the Hon'ble Supreme Court and the orders of this Tribunal, and secondly the said Circular was issued on 25.04.2016 i.e. on a later date, whereas the period in dispute is March, 2015 to June, 2015. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n nder Rule 6 of Cenvat Credit Rules 2004 is not correct. In view of the above judgments the issue whether Rule 6(3) is applicable in case of removal of non-dutiable waste or by product is settled in favour of the assessee. As regard the submissions made by Ld. ARs that after insertion of explanation in Rule 6(1), even in case of non-excisable goods, the reversal under Rule 6(3) is required. In this regard he referred to the Hon'ble Supreme Court judgment in the case of DSCL Sugar Ltd.(supra). Wherein the Hon'ble Supreme Court has held that in case of non-manufactured\/non-excisable goods under Rule 6(3) would not apply and after the amendment in Rule 6(1) by inserting explanation, the ratio of the Hon'ble Supreme Court judgment will not applicable for the period after amendment. On careful consideration of this submission, I find that the issue before the Hon'ble Supreme Court in DSCL Sugar Ltd. was that whether Rule 6(3) is applicable in case of non-excisable goods. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s Shri Vitthalsai S.S.K. Ltd. Versus Commissioner of GST & Central Excise, AurangabadCentral Excise2018 (10) TMI 1153 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 17-10-2018E\/86639 & 86655\/2018 – A\/87647-87648\/2018Central ExciseShri Ajay Sharma, Member (Judicial) For the Appellant : Shri H.S. Shirsat, Consultant For the Respondent : Shri A.B. Kulgod, Assistant Commissioner (AR), Shri M.R. … Continue reading “M\/s Shri Vitthalsai S.S.K. Ltd. Versus Commissioner of GST & Central Excise, Aurangabad”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-14599","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14599","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14599"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14599\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14599"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14599"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14599"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n (c) The penalty should not be imposed upon them under the provisions of Rules 15(2) of CENVAT Credit Rules, 2004.”
\n4. The adjudicating authority vide Order-in-Original dated 28.12.2016 dropped the demand for the period from September, 2014 to February, 2015, in view of the decision of Hon'ble Supreme Court in the matter of Union of India and Others Vs. DSCL Sugar Ltd. reported in 2015 (322) ELT 769 (S.C.) but confirmed the demand of Rs. 5,48,023\/- for the period from March, 2015 to June, 2015, in view of the amendment made in Rule 6 of CENVAT Credit Rules, 2004 w.e.f. 01.03.2015, along with interest and penalty. On filing the appeal by the Appellant, the Learned Commissioner, CGST & Central Excise, Nagpur-II upheld the order passed by the adjudicating authority and rejected the appeal.
\n5. I have heard Learned Consultant for the Appellant and Learned Authorised Representative for the Revenue and perused the records.
\nLea<\/p>\n
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\n (iii) M\/s Indreshwar Sugar Mills Ltd. & Others etc. Vs. CCE, Pune-III – Final Order No. A\/90687-90703\/17\/SMB, dated 15.11.2017
\n (iv) Athani Sugars Ltd. & Others etc. Vs. CCE, Pune-III 2017-TIOL-4280- CESTAT-MUM
\n (v) Sahakar Shiromani Vasantrao Kale SSK Ltd. Vs. CCE, Pune-III – 2017- TIOL-4127- CESTAT-MUM
\n (vi) M\/s. ECO Cane Sugar Energy Ltd. & Others etc. Vs. CCE, Kolhapur – 2017 (12) TMI 950- CESTAT-MUMBAI
\n (vii) M\/s Shivratna Udyog Ltd. & Others etc. Vs. Commissioner of Customs & Central Excise – 2017 (9) TMI 985- CESTAT MUMBAI
\n (viii) Shree Narmada Khand Udyog, Sahakari Mandli Ltd. Vs. Commissioner (Appeals) – 2018 (8) TMI 1075 – CESTAT AHMEDABAD
\n (ix) M\/s Simbhaoli Sugar Ltd. Vs. CCE, Noida – 2018 (8) TMI 160 – CESTAT ALLAHABAD
\n (x) M\/s Triveni Engineering & Industries Ltd. Vs. C.C. & C.E. & S.T. – Noida – 2018 (8) TMI 6 – CESTAT ALLAHABAD
\n6. The Learned Authorised Representative on behalf of the Revenue reiterated the finding in the impugned ord<\/p>\n
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\n “Rule 6(1) The Cenvat credit shall not be allowed on such quantity of inputs used in or in relation to the manufacture of exempted goods or for provision of exempted services, or input service used in or in relation to the manufacture of exempted goods and their clearance upto the place of removal or for provisions of exempted service except in the circumstances mentioned in sub-rule(2): Provided that the CENVAT credit on inputs…………..
\n Explanation 1:- For the purposes of this rule, exempted goods or final products as defined in clauses (d) and (h) of Rule 2 shall included non-excisable goods cleared for a consideration from the factory.”
\nReading the aforesaid explanation-I reveals that non-excisable goods cleared for consideration, would fall within the scope of the said Rule. The contention of the Revenue is that since, the “exempted goods”, “final products” defined under the CENVAT Credit Rules, 2004 in clause (d) and clause (h), respectively include n<\/p>\n
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\n9. Almost all the decisions cited by Learned Counsel for the appellant are on identical issue and in all the decisions, this Tribunal has taken a consistent view that Rule 6 of CENVAT Credit Rules, 2004 has no application in given facts. For instance, in the matter of M\/s Shivratna Udyog Ltd. & Others (supra), while allowing the appeal, the following order has been passed by this Tribunal :-
\n “I have carefully considered the submissions made by both sides. The fact of the case is that the appellants' goods in dispu<\/p>\n
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\n However, in the pr<\/p>\n
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