Tirupati Pipe & Allied India Pvt. Ltd. Versus CCGST, Nasik
Central Excise
2019 (2) TMI 936 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 13-2-2019
APPEAL NO: E\/87658\/2018 – A\/85278\/2019
Central Excise
Shri Ajay Sharma, Member (Judicial)
\nAppellant: Shri Mayur Shroff, Advocate
\nRespondent: Shri A.B. Kulgod, Assistant Commissioner (AR)
\nORDER
\nThe issue to be decided in this Appeal is whether the Appellant is required to reverse\/pay back the amount equivalent to the Cenvat Credit contained in respect of inputs received for use in the manufacture of final product, which are lying in stock as on 1.4.20007, as per the proviso of Rule 11(2) & 11(3) of the Cenvat Credit Rules, 2004, before exercising the option for exemption of Excise duty, under notification No.8\/2003-CE dated 1.3.2003?
\n2. The facts of the matter are that the appellant are availing the benefit of Notification No.8\/2003-CE dated 1.3.2003 as amended. During the Financial Year 2006-07, the appellant <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n t lying with them as on 31.3.2007. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ommissioner (Appeals), Central Tax and Central Excise, Nasik vide impugned order dated 27.3.2018 partly allowed the Appeal filed by Revenue and reduced the demand to Rs. 8,26,078\/- alongwith interest. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ed. Nothing of this sort has happened in the present case. It is true that the department has preferred an Appeal before the Hon'ble High Court against the order of this Tribunal. However, the Appeal was dismissed as withdrawn due to monetary limits. This fact itself is not sufficient to empower the Commissioner to take different view and not to follow the order passed by this Tribunal. The ld. Commissioner was bound to follow the decision of the Tribunal as per the demands of judicial propriety and the impugned order is nothing but the breach of doctrine of judicial discipline and judicial propriety. I am surprised to notice the reasoning given by the ld. Commissioner for not following the decision of this Tribunal in Appellant's own case on identical issue for the earlier financial year. Otherwise also, the Hon'ble Supreme Court in the matter of Dai Ichi Karkaria (supra) has laid down that the Cenvat credit is indefeasible and there is no one to one correlation between the input cred<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n of Modvat credit already utilised correctly. If the Rule contemplated additional cash payment on account of balance in Cenvat credit being insufficient, the Rule would not have qualified the credit balance as balance “if any”. The addition of those words make it clear that Cenvat credit balance alone is contemplated and no additional payment. An interpretation that requires additional payment if the balance in the credit account is not sufficient to meet debit of Cenvat credit on inputs in stock etc. would be to permit recall of Modvat credit correctly utilised. Such an interpretation goes against the scheme of Cenvat credit and the language of Rule 9(2).” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n is thus no merit in these appeals which are accordingly dismissed.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Tirupati Pipe & Allied India Pvt. Ltd. Versus CCGST, NasikCentral Excise2019 (2) TMI 936 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 13-2-2019APPEAL NO: E\/87658\/2018 – A\/85278\/2019Central ExciseShri Ajay Sharma, Member (Judicial) Appellant: Shri Mayur Shroff, Advocate Respondent: Shri A.B. Kulgod, Assistant Commissioner (AR) ORDER The issue to be decided in this Appeal is whether … Continue reading “Tirupati Pipe & Allied India Pvt. Ltd. Versus CCGST, Nasik”<\/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-16830","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16830","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=16830"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16830\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16830"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16830"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16830"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. As per the department, the appellant after given the option letter to the competent authority, have cleared the excisable goods so manufactured at nil rate of duty of central excise including Ed. Cess & H.S. Ed. Cess from their factory by availing the benefit of aforesaid notification, even though they did not fulfill the condition laid down under Rule 11(2) & (3) ibid. The appellant is thus ineligible for benefit of exemption under the aforesaid notification. Accordingly a show cause notice dated 29\/30.4.2008 was issued to the Appellant as to why:-
\n(i) Central excise duty on the excisable goods cleared without payment of duty from the factory by the assessee valued at Rs. 1,50,00,000\/- on which central excise duty Rs. 24,62,478\/- including Ed.& H.S.Ed Cess should not be demanded and recovered under Section 11A of Central Excise Act, 1944.
\n(ii) interest should not be charged\/ demanded and recovered under the provisions of section 11AB of Central<\/p>\n
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\n4. I have heard ld. Counsel for the appellant and ld. Authorised Representative for the Revenue and perused the records. Ld. Counsel for the Appellant submitted that although on identical issue for the earlier financial year this Tribunal has held in favour of the Appellant but still the ld. Commissioner did not rely upon the same only on the ground that in view of Section 35R (1) & (2) of the Central Excise Act, 1944 the appeal filed by the department against the said order before the Hon'ble High Court of Judicature at Bombay was withdrawn and therefore the said decision of this Tribunal is not binding. He also submitted that the conduct of the ld. Commissioner, amounts to judicial indiscipline. He further submitted that although the issue involved in this matter is also covered in fav<\/p>\n
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\nThe aforesaid order of the Tribunal was affirmed by the Hon'ble Punjab & Haryana High Court in the Appeal filled by Revenue in the matter of CNC Commercial Ltd.(supra) and while following the law laid down by the Hon'ble Supreme Court in Dai Ichi Karkaria case (supra), the Hon'ble High Court held as under:-
\n“5. We have heard the <\/p>\n
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\n6. This Tribunal also while deciding the appeal filed by the appellant for the earlier financial year, vide order No.A\/797\/09\/SMB\/C-IV, dated 15.12.2009, relied upon the decision of the Hon'ble High Court in the matter of CNC Commercial Ltd.(supra) and held as under:-
\n“5. I have gone through the submissions made by both the parties and find that the case of the respondent is squarely covered by the decision of Punjab & Haryana High Court in Commissioner of Central Excise, Chandigarh vs. CNC Commercial Ltd.-2008 (224) ELT 239 (P&H), wherein the Hon'ble High Court has held that in these facts and circumstances, while opting for SSI exemption the assessee is not required to reverse the CENVAT Credit. Following the same ratio, I do not find any merits in the Appeal filed by the Revenue. Accordingly, the impugned order is upheld and the appeal is rejected.”
\n7. Although the Revenue filed the Appeal against the aforesaid<\/p>\n
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