Excise Appeal No. 10958 of 2014
(Arising out of OIO-SUR-EXCUS-002-COM-039-13-14 dated- 03/12/2013 passed by
Commissioner of Central Excise, Customs and Service Tax-SURAT-II)
Sun Pharmaceuticals Industries Ltd
VERSUS
C.C.E. & S.T.-Surat-ii
Appearance:
Shri A.B Nawal,Cost Accountant & Ms. Nidhi Nawal, Advocate appeared for the
Appellant
Shri Ghanshyam Soni, Additional Commissioner (AR) for the Respondent
CORAM:
HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR
HON’BLE MEMBER (TECHNICAL), MR. RAJU
Final Order No. A / 10110 /2023
DATE OF HEARING: 14.09.2022
DATE OF DECISION: 13.01.2023
RAMESH NAIR
This appeal is filed against the impugned Order-in-Original No.SUR
EXCUS-002-COM-039-13-14 dated 03.12.2013 passed by the Commissioner
of Central Excise & Service tax, Surat –II.
1.2 The brief facts of the case are that during the course of audit while
scrutiny of the Cenvat Credit register of inputs, it was observed that
appellant have taken Cenvat Credit on the basis on their own invoices on
which inputs were cleared to their 100% EOU on job work purpose.
Appellant have two units one is DTA unit and another is 100% EOU, both
manufacturing Bulk Drugs falling under chapter 29 of the CETA 1985.The
100% EOU unit has applied for Job Work permission and sought annual
permission for manufacture of 417600 Kgs. of PENTOXIFYLLYNE meant for
export on behalf of DTA unit. The said permission was sought under Circular
No. 69/1998-Cus dated 14.09.1998 and 74/1999-Cus dated 05.11.1999.
The Deputy Commissioner, Division –III, Ankleshwar has granted permission
to the 100% EOU unit with specific condition. On perusal of the Circular No.
69/98-dated 08.09.1998 it is observed that the Circular pertains to import of
irrigation equipment for use in contract farming under EPCG scheme and for
export of Agro products, therefore it has no relation with the sub
contracting of manufacture of goods meant for export, by EOU unit on behalf
of DTA unit. Further the Circular No. 74/99-CUS dated 05.11.1999 is in
relation to Job Work undertaken by EOU/EPZ/EHTP units from DTA. As per
para 3 of said circular the benefit of para 4 of circular No. 67/98-Cus. dated
14.09.1998 has been extended to EOU /SEZ units in aquaculture, animal
husbandry, electronics hardware and software sector also subject to the
condition that finished products produced by such EOU/SEZ units will be
exported directly from such units and these goods shall not be allowed to be
brought back to DTA unit and it was also clarified that no drawback/DEPB
benefits shall be admissible either to EOU/EPZ units or the DTA units for
such exports. Further, as per para 11 of Circular No. 49/2000-Cus dated
12.05.2000, the facility to undertake job work on behalf of DTA unit has
been extended to EOU /EPZ units in all sector and it has been decided that
the DTA unit shall be entitled to avail of the brand rate of duty drawback for
such job work undertaken by EOUs/EPZ units concerned. Board’s Circulars
67/98 –Cus. dated 14.09.1998 and 74/99-Cus. dated 05.11.1999 stand
modified to the above extent. As per Exim policy, the circulars and the
conditions laid down by the Deputy Commissioner for Job work, the
Appellant (DTA unit) is only entitled for benefit of Brand rate of Duty
Drawback of the Duty paid on inputs used in the manufacture of goods
meant for export by 100% EOU unit on Job Work basis on behalf of DTA
units; the assessee is not entitled for the benefit of Cenvat Credit of such
inputs. It appears that the DTA unit is only entitled for refund of duty paid
on the inputs by way the brand rate of duty drawback. Accordingly, show
cause notice was issued for recovery of cenvatcredit availed by the appellant
along with interest and penalty. On adjudication demand was confirmed vide
impugned order with interest and penalty. Hence, the present appeal.
Shri A.B Nawal, Learned Cost Accountant along with Ms. Nidhi Nawal,
Learned Advocate for the appellant submits that the present demand is on
DTA unit and in order to utilize idle capacity of the EOU, they sent raw
materials and input to the EOU unit for Job work. DTA unit procured inputs
from the suppliers/other related parties against the various invoices. In
accordance with para 6.14 (b)(1) of FTP job work permission was taken from
the Deputy/Assistant Commissioner for manufacture of specific quantity of
finished goods. During the period May 2010 to October 2010 appellant have
received main inputs on which they have paid duty of Rs. 78,14,427/- but
appellant have not taken cenvat credit on those inputs in accordance with
job work permission letter. Brand rate application was filed but was rejected.
Since brand rate application for claiming drawback equivalent of cenvat
portion was denied as also rebate claim was not granted and there is no bar
for availing cenvat credit on excisable goods. Appellant submitted letter
before department to get permission to avail cenvat credit.
2.1 He also submits that circular No. 67/1998-Cus. dated 14.09.1998,
Circular No. 74/1999-Cus dated 05.11.1999 and Circular No. 49/2000-Cus.
dated 22.05.2000, Circular No. 31/2000-Cus dated 20.04.2000 have not
restricted for availment of Cenvat credit, but only given the procedure of
exportation. These circular cannot override legal provisions and hence
considered void by various judicial decision. The said circulars were not
applicable to the pharmaceutical units still impugned order is passed
considering the above circulars.
2.2 He further submits that appellant objected to arbitrary condition
mentioned in the Job Work permission letter dated 26.04.2010 and
27.07.2011 and letter dated 04.06.2010. Thereafter in subsequent
permission letter dated 07.02.2012 granted by the DC, the condition of
barring DTA unit to avail cenvat credit has been removed. It clearly shows
that department has accepted their error and therefore they have removed
this invalid condition from subsequent job work permission.
2.3 He also submits that DTA unit has sent the goods to the EOU unit
against the Job Work Challan and not against the invoices and therefore,
EOU unit, otherwise also, is not entitled to avail the cenvat credit and
therefore EOU unit have not taken the Cenvat Credit. There cannot be bar
to avail the cenvat credit on the dutiable goods which has been exported.
2.4 Learned Counsel for the appellant has relied upon the various
judgments in his support :
(i)
Topcom India Vs. Union of India 2021(376)ELT 573 (Gau,)
(ii)
J.K. Lakshmi Cement Ltd. Vs. Commercial Tax officer, Pali –
2018(14)GSTL 497(SC)
(iii)
Sun Pharmaceutical Industries Ltd. – 2015(328)ELT 792 (GOI)
(iv)
Pioneer Miyagi Chemical Vs. Central Board of Cx. &Cus., New
Delhi 2000(116)ELT 441 (Mad.)
(v)
Central Board of Excise & Customs, New Delhi Vs. K.G. Denim
Ltd. – 2020(371)ELT 646(Mad.)
(vi)
Commissioner of Customs, Tuticorin Vs. L.T. Karle & Co.
2007(207)ELT 358 (Mad.)
(vii)
Ranadey Micronutrients Vs. Collector of Central Excise 1996
(87)ELT 19(S.C.)
(viii)
Commissioner of C.Ex. Bolpur Vs. Ratan Melting & Wire
Industries 2008(12)STR 416 (SC)
(ix)
International Travel House Ltd. Vs. CCE, Chennai 2011(22)STR
629(Tri. Chennai)
(x)
Faridabad Iron & Steel Traders Association Vs. Union of India
2004(178)ELT 1099 (Del.)
Shri Ghanshyam Soni, Learned Additional Commissioner (AR)
appearing on behalf of the Revenue reiterates the finding of the impugned
order.
On careful consideration of the submission made by both the sides and
the perusal of the records, we find that in the present matter for
confirmation of cenvat demand revenue is of the view that the Appellant is
not entitled to take Cenvat Credit on the inputs which were sent for Job
Work to EOU unit and exported therefrom. As per the department’s view
Appellant has to go for drawback claim against the duties suffered on the
inputs which were sent for Job work to EOU, Appellant is eligible for brand
rate of draw back against duties suffered on inputs. In this context revenue
referred Para 9.17 (b) of the Foreign Trade Policy 1997-2002, circulars and
Job work permission granted by the Assistant /Deputy Commissioner.
4.1 We find that jurisdictional Assistant / Deputy Commissioner of Central
Excise, Ankleshwar allowed job work from DTA to EOU unit vide permission
letters dated 26-4-2010 and 27-7-2011 subject to following conditions :
“1.
The DTA unit shall be eligible for grant of drawback against
duty suffered on their inputs which are processed by EOU unit for
the manufacture of goods, which are exported. The DTA exporter
is eligible for payment of Brand Rate of drawback against duty
suffered on inputs, on submission of proof of duty.
No CENVAT credit shall be allowed to the DTA unit on the
duty paid on inputs procured for DTA to job work manufacturing.
The finished goods has to be exported from the EOU itself
and cannot be allowed to be taken back to the DTA Unit.
The export is not to be counted under the parameters of
EOU schemes and no benefit would accrue to the EOU.
Shipping Bill to be filed in the name of DTA unit and the
name of the EOU unit will also be mentioned on Shipping Bill as a
job worker. Both units’ name and address to be mentioned on
ARE-1 & invoice. ARE-1 shall be signed by both the parties.
No DEPB benefit shall be admissible either to EOU unit or to
the DTA unit for such exports. Such exporters will not be allowed
to claim all industry rate of drawback.”
The first condition stipulates that DTA unit will be eligible for brand rate of
drawback with regard to duty suffered on inputs. Since above Job Work
permission issued to appellant provides a condition that DTA unit shall be
eligible for Brand Rate of Duty Drawback, also put condition that no cenvat
credit shall be allowed to DTA units. Clearly the intention behind the said
condition that doubles benefit cannot be availed. However in the present
matter it is admitted facts that Appellant has not received duty draw back.
Brand rate application for claiming duty drawback of cenvat portion has been
already rejected by department. Due to this only appellant availed the
Cenvat Credit in the present matter.
4.2 We consider it appropriate to reproduce the relevant statutory
provisions applicable in the present case i.e., Rule 3 and 4(5)(a) of Cenvat
Credit Rules, 2004 :
“Rule 3, CENVAT credit – (1) A manufacturer or producer of
final products or a provider of taxable service shall be allowed to
take credit of —
(I) the duty of excise…………
(ii) the duty of excise……………………….
(vi) the education cess……………………
paid on –
(i)
any input or capital goods received in the factory of
manufacturer of final product or premises of the provider of
output service…………
(ii) any input service received by manufacturer of final
product……….
Including the said duties, or tax,—————-
“Rule 4(5)(a) – The Cenvat credit shall be allowed even if any
inputs or capital goods as such or after being partially processed
are sent to a job worker for further processing, testing, repair, re
conditioning, or for the manufacture of intermediate goods
necessary for the manufacture of final products or any other
purpose, and it is established from the records, challans or
memos or any other document produced by the manufacturer or
provider of output service taking the CENVAT credit that the
goods are received back in the factory within one hundred and
eighty days of their being sent to a job worker and if the inputs or
the capital goods are not received back within one hundred eighty
days , the manufacturer or provider or output service shall pay an
amount equivalent to the CENVAT credit attributable to the inputs
or capital goods by debiting the Cenvat credit or otherwise, but
the manufacturer or provider of output service can take the
CENVAT credit again when the inputs or capital goods are
received back in his factory or in the premises of the provider of
output service.”
From the above, we find that it is very clear that cenvat credit can be availed
by the manufacturer of final products for duties paid on inputs used in goods
sent for Job work.
4.3 We have also gone through the finding of impugned order. The Ld.
Commissioner held that appellant had deliberately availed inadmissible
Cenvat Credit on inputs knowing well that the same is barred by the
permission granted by AC for Job work, the Exim Policy and Circulars.
However Ld. Commissioner in the impugned order nowhere referred any
para of said circulars wherein it has been mentioned that the DTA unit
cannot be eligible for cenvat credit. Further in subsequent Job work
permission granted by the Deputy Commissioner vide letter dtd. 07.02.12
the condition of barring DTA unit to avail Cenvat Credit has been removed. It
clearly shows that department has imposed the condition on Appellant which
is legally not correct. Further we also observe that para 6.14(b)(1) of FTP
provides that DTA unit will be entitled for refund of duty paid on inputs by
way of brand rate of duty drawback, no condition related to non availment of
Cenvat credit was mentioned therein. Without prejudice, even circular, FTP,
job work permission restrict the same but nowhere in Central Excise Act and
rules made thereunder including Cenvat Credit Rules, 2004 it provides for
such condition that no cenvat credit is eligible if goods are sent to EOU for
Job work.
4.4 On perusal of the impugned order, we find that the Learned
Commissioner has decided the disputed cenvat matter, without proper
examination of the issue and relevant provisions of cenvat credit rules.
Furthermore, it is also observed by us that the submissions made by the
appellant and judgments relied upon by the Appellant were not addressed in
effective manner for adjudication of the dispute. Therefore, we are of the
considered view that the issues involved in this case are required to be
reconsidered by the Learned Commissioner for arriving at a proper
conclusion that whether or not the appellant should be entitled for cenvat
benefit.
4.5 In view of above discussions, the impugned order is set aside and the
matter is remanded to the Learned Commissioner for deciding the issues
afresh. For the said purpose, the Learned Commissioner should examine the
submissions of appellant to be made before him. Needless to say, that
opportunity of personal hearing should be granted to the appellant before
deciding the issues afresh.
In the result, the appeal is allowed by way of remand.
(Pronounced in the open court on 13.01.2023)
RAMESH NAIR
MEMBER (JUDICIAL)
RAJU
MEMBER (TECHNICAL)
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