Excise Appeal No.10573 of 2015
(Arising out of OIO-VAP-EXCUS-000-COM-014-14-15 dated 30/12/2014 passed by
Commissioner of Central Excise, Customs and Service Tax-SILVASA)
Dabur India Limited
VERSUS
C.C.E & S.T.-Silvasa
Commissioner Central Excise, Customs & Service Tax, Silvassa, 4th Floor, Adarsh Dham
Building, Vapi Daman Road Vapi, Opp. Old Town Police Station
VAPI, Gujarat
WITH
Excise Appeal No.10574 of 2015
(Arising out of OIO-VAP-EXCUS-000-COM-015-14-15 dated 30/12/2014 passed by
Commissioner of Central Excise, Customs and Service Tax-SILVASA)
Dabur India Limited
VERSUS
C.C.E & S.T.-Silvasa …….Respondent
Commissioner Central Excise, Customs & Service Tax, Silvassa, 4th Floor, Adarsh Dham
Building, Vapi Daman Road Vapi, Opp. Old Town Police Station
VAPI, Gujarat
APPEARANCE:
Shri B.L. Narasimhan, Shri Jigar Shah, Shri Amber Kumawat (Advocates) for the
Appellant
Shri Ghanasyam Soni, Joint Commissioner (AR) for the Respondent
CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR
HON’BLE MEMBER (TECHNICAL), MR. RAJU
Final Order No. A/ 10001-10002 /2023
DATE OF HEARING: 25.11.2022
DATE OF DECISION: 04.01.2023
RAMESH NAIR
Appeal No. E/10573/2015 is filed by appellant – M/s. Dabur India
Limited (Unit-1) against Order-in-Original No. VAP-EXCUS-000-COM-014-14-
15 dated 30.12.2014 and Appeal No. E/10574/2015 is filed by appellants-
M/s. Dabur India Limited (Unit-2) against Order-in-Original No. VAP-EXCUS-
000-COM-015-14-15 dated 30.12.2014. The issue in both these appeals is
common. Therefore, they are taken up together for disposal.
- The brief facts of the case are that the appellants also have
manufacturing units in other states of India i.e. Baddi in Himachal Pradesh,
Rudrapur in Uttarakhand, Sahibabad in Uttar Pradesh, Alwar in Rajasthan
and Pithmapur in Madhya Pradesh. The Units located in Baddi and Rudrapur
were clearing goods under area based exemption Notification No. 50/2003-
CE dated 10.06.2003 whereas the other units of the Appellants, including
the units in impugned appeals, were clearing goods on payment of Central
Excise Duty at the applicable rate. The Appellants also have a corporate
head office at Kaushumbi, Ghaziabad which were registered with the Central
Excise & Service Tax department as Input Service Distributors (ISD in short)
for distributing the Cenvat Credit of input services received at the corporate
office in relation to the goods manufactured at various unit across India.
Baddi Unit and Rudrapur Units of M/s. Dabur India Limited were availing
area based exemption under Notification No. 50/2003-C.E., dated 10-6-
- It appeared to Revenue that credit of Service Tax attributable to
service used in a Unit exclusively engaged in the manufacture of exempted
goods was distributed by Input Service distributor, to Units which were
manufacturing dutiable goods. It appeared to Revenue that under Clause (b)
of Rule 7 of the Cenvat Credit Rules, 2004 M/s. Dabur India Limited
(Corporate head office) was not entitled to distribute such Input Service Tax
credit which was attributable to Services used in a Unit exclusively engaged
in manufacture of exempted goods. Therefore, investigations were carried
out and on the basis of investigation a show cause notice dated 21-10-2011
was issued to M/s. Dabur India Limited (Input Service Distributor –
Ghaziabad). It was alleged in the said show cause notice that Advertisement
Service & Sales Promotion Services received by Input Service Distributor
which was attributable to exempted goods and traded goods were
distributed to the Units which were manufacturing dutiable final product. It
appeared to Revenue that Cenvat credit on account of exempted goods and
traded goods were inadmissible for distribution since the said credit was in
respect of input services which were attributable to exempted goods.
Therefore, Appellants were called upon to show cause Notices as to why
Cenvat credit attributable to exempted goods and trading goods should not
be disallowed. The said show cause notices was adjudicated through the
above impugned Orders-in-Original. Aggrieved by the said impugned orders,
appellants are before this Tribunal.
- Shri B.L.Narsimhan, learned counsel appearing for the Appellant
submits that dispute regarding the eligibility of credit by the ISD unit &
Sahibabad unit of M/s Dabur India has been settled by the Hon’ble Tribunal
vide Final Order No. A/70452-53/2017 dated 13.04.2017. The Hon’ble
CESTAT has set aside the entire demand raised against the ISD unit. Thus,
the entire Cenvat Credit availed by the ISD on disputed input services has
held to be eligible, including the credit sought to be denied in the impugned
orders from the Appellants. Once the availment and distribution of credit by
the ISD is held to be proper, there is no question of denying the same credit
at the hands of the recipient units on the same grounds and for the same
period. In the same Order dated 13.04.2017 the Hon’ble CESTAT, has also
set aside the demand for denial of Credit raised against the Sahibabad unit
of the Appellants on identical grounds as the show cause notice in the
present case.
3.1 He also submits that in pursuance of the Judgment dated 13.04.2017
of the Hon’ble CESTAT, Allahabad, the Hon’ble CESTAT, Delhi vide order
dated 24.07.2017 has set aside the demand for denial of credit raised
against the Alwar Unit and demand for denial of credit raised against the
Pithampur unit.
3.2 He further submits that for the same Units (Silvassa) for the
subsequent period from April 2011 to December 2011, the appeals filed by
Appellants against the denial of Cenvat Credit availed on distributed by ISD
office on advertisement and sale promotion services were decided by the
this CESTAT vide Order reported at 2018(2) TMI 618-CESTAT- Ahmedabad
in favour of appellants. The Hon’ble Tribunal has settled the issue in the
Appellant’s favour vide the above mentioned decisions and therefore, on this
ground alone the present demands confirmed against the Appellant’s units
are also liable to be set aside.
3.3 Without prejudice, he also submits that Appellant are entitled to avail
CENVAT credit distributed to it by the ISD. The Rule 7 as applicable during
the period in dispute it contained only two conditions for distribution of
Credit by ISD and dispute is only restricted to applicability of condition as
contained in Rule 7(b) of Credit Rules. Moreover, the word used in this Rule
are “used in a unit” which means if the services were used exclusively in that
unit in manufacture of the exempted goods or providing of the exempted
output services, the same shall not be distributed. It is undisputed facts the
credit which was relating to service “ used in” the exempted units was not
availed by the Appellants. In other words, the services in question have not
been used exclusively in exempted unit. It has also been used by the
Appellants in respect of goods produced in duty paying unit. Such service is
not restricted to be used in manufacturing process of the goods, therefore
such service falls under inclusive part of the definition of the input services.
Further, such advertisement services are not specific to its use, as these are
general in nature and used by a manufacturer after manufacturing process is
over.
3.4 He also submits that the Ld. Commissioner has held that cenvat credit
of service tax paid on advertisement services used in relation to the final
products which have been traded is not available as trading activity is
neither manufacturing activity nor a taxable service and is beyond the
application of Cenvat Credit Rules, 2004. However, the said finding is
contrary to the clarification issued by the Board vide Circular No. F.No.
334/3/2011-TRU dated 28.02.2011 and Circular No. 943/4/2011-CX dated
29.04.2011 wherein trading has been considered an exempted service.
3.5 Without prejudice to above, he further submits that trading activity
was neither exempted goods nor exempted services prior to 01.04.2011, as
trading activity was included in the definition of exempted service only after
the amendment of Rule 2 (e) of Cenvat Credit rules, 2004 w.e.f. 01.04.2011
by Notification No. 03/2011-CE(NT) dated 01.03.2011. Thus Ld.
Commissioner has grossly erred in concluding that the credit availed in
relation to traded goods prior to 01.04.2011 is required to be reversed. In
order to substantive above submission he placed reliance on the following
decisions:-
3.6 He also submits that the restrictions of Rule 6(1) and Rule 7(b) of the
Cenvat Credit Rules, 2004 are not applicable in the present case.
- Shri Ghanasyam Soni, Learned Joint Commissioner (AR) appearing on
behalf of the revenue reiterates the findings of the impugned Orders-in
Original. He also placed reliance on the following decisions:-
2016(42) STR 28(TRI-BANG) –FOSROC CHEMICALS INDIA PVT. LTD.
- CST, BANGALORE -LTU
2018(17) GSTL 422 (DEL) – LALLY AUTOMOBILES P. LTD. VS.
COMMISSIONER (ADJUDICATION), C.EX.
2019(24)GSTLJ 115(SC) –LALLY AUTOMOBILES PVT. LTD. VS.
COMMISSIONER
2008 (10) STR 382 (TRI- MUM)- METRO SHOES P. LTD. VS. CCE,
MUMBAI.
2010 (19) STR 205 (TRI. AHMD) – ORION APPLIANCES LTD. VS. CST,
AHMEDABAD.
- After hearing both the side and on perusal of available records, we find
that an identical issue in the assessee-appellant’s own case has been
decided in favour by the Tribunal. The said orders of Tribunal are reproduced
below:-
DABUR INDIA LIMITED- 2017 (6) GSTL 106 (Tri.-All.)
“4.Heard the ld. Counsel for appellant who has taken us through the said
show cause notice in Paras 14 & 15. He also taken us through the
provisions of Rule 7 of the Cenvat Credit Rules, 2004 that were operational
during the material period of show cause notice. He has contended that as
per Clause (b) of Rule 7 of the Cenvat Credit Rules, 2004 Service Tax
attributable to services used in a Unit exclusively engaged in the
manufacture of exempted goods is not admissible to be distributed. He
further contended that the show cause notice has nowhere established
that the Service Tax which was proposed to be recovered was attributable
to services exclusively used in those Units which were exclusively engaged
in the manufacture of exempted goods. He has further contended that it is
admitted fact that the services were commonly used for entire group of
manufacturing organization and that the apportionment of admissible
Cenvat credit and inadmissible credit for issue of show cause notice was
by Revenue on the basis of turnover of Units which were manufacturing
exempted goods and turnover of the Units which were manufacturing
taxable goods. He further contended that in the entire show cause notice
therein no allegation that credit of Service Tax of any service used
exclusively in the Unit which is manufacturing exempted goods have been
availed or distributed. He further contended that Clause (d) of Rule 7 of
the Cenvat Credit Rules, 2004 which was introduced subsequent to the
period of show cause notice was relied upon by Original Authority for
confirmation of demand and therefore the impugned order is not
sustainable. He further contended that Rule 14 of the Cenvat Credit Rules,
2004 cannot be relied upon for recovery of alleged inadmissible Cenvat
credit from M/s. Dabur India Limited (ISD). He further relied on the Final
Order No. 52089-52090/2017-DB, dated 3-3-2017 passed by Coordinate
Bench of this Tribunal in the case of M/s. Secure Meters Ltd. v.
Commissioner of Central Excise & Service Tax, Jaipur [2017 (3) GSTL 422
(Tri.-Del.)]. He has contended that in the said case services were utilized
at the level of corporate office of the manufacturing Units and in terms of
said Rule 7 of the Cenvat Credit Rules, 2004, credit was distributed to the
Unit manufacturing dutiable goods. It was further held in the said Final
Order No. 52089-52090/2017-DB, dated 3-3-2017 that Rule 7 of the
Cenvat Credit Rules, 2004 was amended vide Notification No. 5/2014-C.E.
(N.T.), dated 24-2-2014 whereby the explanation was substituted with
“used by one or more units in the place of use in a unit” and it was held
that such amendment was not applicable for the period prior to January,
- He further relied on this Tribunal’s Final Order in the case of Indian
Oil Corporation Ltd. v. Commissioner of Central Excise, Delhi-II reported
at 2014 (35) S.T.R. 411 (Tri. – Delhi) wherein it was held that demand for
recovery cannot be raised against input service distributor under Rule 14
of the Cenvat Credit Rules, 2004.
5.Heard the ld. DR who has relied on theimpugned Order-in-Original. The
- DR has contended that provisions of Clause (d) of Rule 7 of the Cenvat
Credit Rules, 2004 were clarificatory in nature and they were applicable to
the period even before 1-7-2012.
6.Having considered the rival contentions and on perusal of the records,
we find that the Original Authority has specifically relied on provisions of
Clause (d) of Rule 7 of the Cenvat Credit Rules, 2004 for confirmation of
demand whereas no such provision has been invoked in the said show
cause notice because during the material period such provisions did not
exist on statute. We further find that in Paras 14 & 15 of the said show
cause notice a methodology was adopted for distribution of Cenvat credit
into admissible and inadmissible credit on the basis of turnover. We do not
find any provision of law for doing so. We further find that Clause (b) of
Rule 7 of the Cenvat Credit Rules, 2004 that existed during material time
provided that such Cenvat credit of Service Tax paid was not admissible to
be distributed which was exclusively used in unit engaged in the
manufacture of exempted goods. The said show cause notice nowhere
established that the Cenvat credit which was proposed to be recovered
was used in a unit exclusively engaged in manufacture of exempted
goods. It is admitted that the Services such as Advertisement Service &
Sales Promotion Services, were utilized in Corporate Office, Kaushambi,
Ghaziabad. The ld. Counsel also contended that both the show cause
notices are hit by limitation. He has also contended that the second show
cause notice is repetition of the first show cause notice. We keep the issue
of limitation open. We set aside both impugned Order-in-Original and
allow both appeals. The appellants shall be entitled for consequential
relief, if any, as per law.”
DABUR INDIA LIMITED- 2017 (9) TMI 344- CESTAT New Delhi
“After hearing both sides and on perusal of material available on record, it
appears that an identical issue in the assessee-Appellant’s own case has
come up before the Allahabad Bench of this Tribunal and the Tribunal vide
Final Order No.7045270453/2017 dated 13.04.2017 has observed as
under:
“6. Having considered the rival contentions and on perusal of the records, we
find that the Original Authority has specifically relied on provisions of Clause
(d) of Rule 7 of the Cenvat Credit Rules, 2004 for confirmation of demand
whereas no such provision has been invoked in the said Show Cause Notice
because during the material period such provisions did not exist on statute.
We further find that in Para 14 & 15 of the said Show Cause Notice a
methodology was adopted for distribution of Cenvat credit into admissible
and inadmissible credit on the basis of turnover. We do not find any
provision of law for doing so. We further find that Clause (b) of Rule 7 of the
Cenvat Credit Rules, 2004 that existed during material time provided that
such Cenvat credit of Service Tax paid was not admissible to be distributed
which was exclusively used in unit engaged in the manufacture of exempted
goods. The said Show Cause Notice nowhere established that the Cenvat
credit which was proposed to be recovered was used in a unit exclusively
engaged in manufacture of exempted goods. It is admitted that the Services
such as Advertisement Service & Sales Promotion Services, were utilized in
Corporate Office, Kaushambi, Ghaziabad. The Id. Counsel also contended
that both the Show Cause Notices are hit by limitation. He has also
contended that the second Show Cause Notice is repetition of the first Show
Cause Notice. We keep the issue of limitation open. We set aside both
impugned Order-in-Original and allow both appeals. The appellants shall be
entitled for consequential relief, if any, as per law.”
Similarly, in the case of M/s Secure Meters Limited Vs CCE&ST, Jaipur, the
Tribunal vide Final Order No.52089-52090/2017 dated 03.03.2017 has
allowed the appeal of the assessee- Appellants by observing that:
“8. In view of the above fact, in terms of Rule 6(5) of Cenvat Credit Rules,
the full Cenvat credit will be available to the assessee, if such services were
used in a manufacturing unit making both, the exempted as well as dutiable
goods. In the present case, the full Cenvat credit has been availed by the
ISD who is required to distribute the same to various units as per Rule 7 of
Cenvat Credit Rules. The Rule 7 (as it stood at the relevant time) only
enforces the condition that credit of service tax attributed to services used in
units exclusively engaged in the manufacture of exempted goods or
providing exempted services shall not be distributed. The appellant’s four
manufacturing units are covered by area based exemption and no such duty
is payable on the goods manufactured there. However, there is nothing on
record to suggest that any of the services have been used only in the units
manufacturing exempted goods. In fact, the nature of services tells us that
these are used at the level of corporate of the manufacturing units of the
assessee. Under the circumstances, restricting the distribution of Cenvat
credit in terms of Rule 7 is not justifiable. The restrictions are there only in
distribution of credit in respect of services which are exclusively used in
relation to manufacturing of exempted goods.
- It may be mentioned that Rule 7 of Cenvat Credit Rules, was amended
vide Notification No.5/2014-CE(NT) dated 24.02.2014 whereby the
expression was substituted with “used by one or more units” in the place of
“used in a unit”. Further, such an amendment will have no bearing in the
present proceedings which cover the period prior to Jan 2010. The
submissions of the appellant is supported by the decision of Tribunal in the
case of Elder Pharmaceuticals Limited (supra).”
By following our earlier decisions (supra), we find no reason to sustain the
impugned orders and the same are hereby set aside.
- In the result, the appeals filed by the assessee-Appellants are allowed.
DABUR INDIA LIMITED- 2018 (2) TMI 618- CESTAT Ahmedabad
Heard both sides. These two Appeals are filed against the Order-in-Appeal
No. VAP-EXCUS- 000-APP-04-14-15 and No.VAP-EXCUS-000-APP-05-14-
15 both dated 21.4.2014 passed by the Commissioner (Appeals), Central
Excise & Customs, Vapi since involved a common issue are taken up
together for disposal. The Appellants are having manufacturing location at
various places including Buddy and Rudrapur where the manufactured
goods are exempted from payment of duty. The Appellant during the
relevant period availed CENVAT credit of the service tax paid on various
input services at their Head office and distributed the credit by issuing
invoices as an ISD, on which they Units have availed credit. Alleging that
their Silvassa Unit had availed inadmissible credit to the extent of input
services attributable to their exempted units, show cause notice was
issued for recovery of the amount of 32,43,619/- (in Appeal
No.E/12638/2014) and 7,35,611/- (in Appeal No.E/12637/2014) with
interest and proposal for penalty. On adjudication the demand was
confirmed with interest and penalty. Aggrieved by the said order the
Appellant filed Appeal before the ld. Commissioner (Appeals), who in turn,
rejected their Appeals. Hence, the present Appeals.
- The ld Advocate for the Appellants submits that the credit availed by
the Appellants in their Silvassa Unit had been denied alleging that the
procedure laid down under Rule 7(b) of CENVAT Credit Rules, 2004 has
not been followed, hence, the credit availed by them is erroneous. It is his
contention that in the case of other units situated under the jurisdiction of
Allahabad and Delhi Tribunal had been decided in their favour. In support,
he refers to the judgment of the Tribunal in their own case reported as
2017-TIOL-1978 – CESTAT – ALL and 2017-TIOL-3082-CESTAT – DEL.
- The ld. A.R. for the Revenue reiterates the findings of the Id.
Commissioner (Appeals).
- find that this issue has been considered by the Allahabad Tribunal and it
has been decided in favour of the Appellant. At Para 6 of the judgment of
the Allahabad Bench, it is observed as under:
- Having considered the rival contentions and on perusal of the
records, we find that the Original Authority has specifically relied on
provisions of Clause (d) of Rule 7 of the Cenvat Credit Rules, 2004
for confirmation of demand whereas no such provision has been
invoked in the said Show Cause Notice because during the material
period such provisions did not exist on statute. We further find that
in Para 14 & 15 of the said Show Cause Notice a methodology was
adopted for distribution of Cenvat credit into admissible and
inadmissible credit on the basis of turnover. We do not find any
provision of law for doing so. We further find that Clause (b) of Rule
7 of the Cenvat Credit Rules, 2004 that existed during material time
provided that such Cenvat credit of Service Tax paid was not
admissible to be distributed which was exclusively used in unit
engaged in the manufacture of exempted goods. The said Show
Cause Notice nowhere established that the Cenvat credit which was
proposed to be recovered was used in a unit exclusively engaged in
manufacture of exempted goods. It is admitted that the Services
such as Advertisement Service & Sales Promotion Services, were
utilized in Corporate Office, Kaushambi, Ghaziabad. The Id. Counsel
also contended that both the Show Cause Notices are hit by
limitation. He has also contended that the second Show Cause
Notice is repetition of the first Show Cause Notice. We keep the
issue of limitation open. We set aside both impugned Order-in
Original and allow both appeals. The appellants shall be entitled for
consequential relief, if any, as per law.”
- Subsequently, the Delhi Bench had also followed the said decision and
decided the issue in favour of the Appellant. Adhering to the judicial
discipline and following the aforesaid precedent, the impugned orders are
set aside and the Appeals are allowed with consequential relief, if any, as
per law.”
In the above Tribunal’s decision in the appellant’s other units, the same facts
and issue are involved. Therefore, the issue in the present appeals is no
longer res-integra. Though the learned AR mentioned that all those Tribunal
orders are appealed against before the respective jurisdictional high court,
however in absence of any stay order by any of the High Courts, the Tribunal
orders shall prevail. Hence, following the precedent decision of Tribunal in
the Appellant’s own case and also following the judicial discipline as per
which the decisions of the co-ordinate benches of the tribunal are binding on
us, we do not find any merits in the impugned orders and the same are
liable to be set aside.
- Accordingly, we set aside the impugned orders. Both the appeals are
allowed with consequential relief, if any, as per law.
(Pronounced in the open court on 04.01.2023)
(RAMESH NAIR)
MEMBER (JUDICIAL)
(RAJU)
MEMBER (TECHNICAL)
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