M\/s HSIL Limited Versus Commissioner of GST & Central Excise, Hyderabad
Central Excise
2019 (2) TMI 846 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 24-1-2019
Appeal No. E\/30340\/2018 – A\/30149\/2019
Central Excise
Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL)
\nSmt Swetha, Advocate for the Appellant.
\nShri AVLN Chary, Superintendent (AR) for the Respondent.
\nORDER
\nPer: P. Venkata Subba Rao
\nThis appeal has been filed by the appellant against Order-in-Appeal No. HYD-EXCUS-MD-AP2-0171-17-18 dated 05.01.2018.
\n2. Facts of the case, in brief, are that the appellant manufactures empty glass bottles and is registered with the Central Excise Department and also avails CENVAT credit on the inputs and the capital goods which they received. During the relevant period Rule 3(5B) of the CCR, 2004 required that “if the value of any, input or capital goods before being put to use, on which CENVAT credit has been taken is written off fully or partially has been made i<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 2004 read with Section 11A of Central Excise Act. It was also proposed to charge interest on duty demanded from them under Section 11AA of Central Excise Act, read with Rule 14(1)(ii) of CCR, 2004. Further, it was proposed to imposed penalty in terms of Rule 15(2) of CCR, 2004 read with Section 11AC. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n f Ingersoll prior to amendment of the Rule 3 (5B) are not to any avail to the appellant in the instant case. The appellants therefore are liable to pay the duty at time of write-down the inputs\/capital goods under intimation to the department as discussed by the adjudicating authority in the impugned order at para No. 17 and they can take credit as and when they reuse the goods for manufacture further. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n department only after verification of records. Therefore the finding of the Adjudicating Authority that it was only on the audit of the accounts of the appellant that brought out the discrepancy culminating in the demand is cogent and the plea of the appellant that the charges of suppression are not applicable on this ground is not accepted. I therefore uphold the findings in para 19(iii) of the impugned order.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ms after writing off, they cannot escape from Rule 3(5B). This amounts to undue financial accommodation. He draws the attention of the Bench to the Board Circular No. 645\/36\/2002-CX dated 16.07.2012 and CBEC Circular No. 101\/12\/95- CX dated 22.02.1995. He prays that the appeal may be rejected and Order-in-Appeal may be upheld. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s HSIL Limited Versus Commissioner of GST & Central Excise, HyderabadCentral Excise2019 (2) TMI 846 – CESTAT HYDERABAD – TMICESTAT HYDERABAD – ATDated:- 24-1-2019Appeal No. E\/30340\/2018 – A\/30149\/2019Central ExciseMr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Smt Swetha, Advocate for the Appellant. Shri AVLN Chary, Superintendent (AR) for the Respondent. ORDER Per: P. Venkata Subba Rao … Continue reading “M\/s HSIL Limited Versus Commissioner of GST & Central Excise, Hyderabad”<\/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-16784","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16784","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=16784"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16784\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16784"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16784"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16784"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. After following due process of law, the lower authority confirmed the demand along with interest and imposed penalties. Aggrieved, the appellant appealed before the First Appellate Authority who upheld the Order-in-Original recording his findings as follows:
\n“12. It is therefore clear that the demand set aside by the Hon'ble High Court in that case is open for the department for demand of reversal of Cenvat credit in the current circumstances. The relevant Rule 3(5B) of the CENVAT Credit Rules, 2004 inserted vide Notification dated 11.05.2007 is in its current form (and as applicable to the present case) is as under:
\n“if the value of any,
\n(i) Input, or
\n(ii) Capital goods before <\/p>\n
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\n13. The appellant also submitted in the grounds of appeal that the goods were put into use for further manufacture for the manufacture and production of the empty glass bottles. They claim that the entitlement of the credit on subsequent use of the inputs makes the demand revenue neutral. They have cited cases in their support. From a perusal of the records, it is observed that the appellant apart from submitting before the Adjudicating Authority and before me in their grounds of appeal, have not provided conclusive proof that they had utilised the inputs under consideration for furthe<\/p>\n
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\n4. Learned Counsel for the appellant submits that it is true that they have written off the goods in question as was required as per accounting standard. It is also true that they have not reversed the CENVAT credit under Section 3(5B). However, subsequent to taking credit, they have used some of the inputs\/capital goods which were originally written off and produce a few of such examples. She fairly submits that they had not produced any evidence before the First Appellate Authority at the time of hearing which resulted in rejection of their claim and upholding of the Order-<\/p>\n
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\n6. I have considered the arguments on both sides and perused the records, that there cannot be two opinions that the appellant had required to pay the amount equivalent to the CENVAT credit availed as soon as the inputs\/capital goods written off by them and they did not. If they had used some or all materials from which they had reverse the CENVAT credit subsequently there could have taken credit of such amount as per the proviso. Therefore, there is no infirmity in the lower authority confirming the demand and the First Appellate Authority upholding the demand along with interest and penalties. However, the appellant now submits that they have documents to show<\/p>\n
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