Dismissed

Commissioner of Central Excise, v. M/s. Suvera Priocessed Foods Private Limited

Telangana HC13 Mar 2014CEA/151/2006

Case brief

AI extract

What is this about?

This common judgment dismissed thirteen Central Excise appeals filed by the Commissioner against the Tribunal. The Court upheld the Tribunal's order distinguishing M/s. Albert David Ltd., holding it inapplicable due to Rule 57AD inserted later, and affirmed the Asok Iron case principles as supported by the Supreme Court.

What did the court decide?

Rejecting the submissions of the appellant, the appeals were dismissed as devoid of merits.

Commissioner of Central Excise, Vs M/s. Suvera Priocessed Foods Private Limited — Telangana HC (2014) — LawSathi Research

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*** HONOURABLE SRI JUSTICE G. CHANDRAIAH** & HONOURABLE SRI JUSTICE CHALLA KODANDA RAM

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+C.E.A.Nos. 151, 100, 144, 149, 150, 152, 153, 155, 157, 158, 159, 160 and 161 of 2006

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%13-03-2014

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# Commissioner of Central Excise ….Appellant

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Vs.

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$ M/s.Suvera Processed Foods Pvt. Ltd. …. Respondent

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!Counsel for the Petitioners: Sri Jalakam Sathyaram, Standing Counsel for

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Central Excise and Customs

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Counsel for Respondents: Sri S. Arun Kumar and Sri Anandhan Ram Kumar

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<Gist :

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>Head Note:

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? Cases referred:

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1. 2002(140) ELT 277 (Tri-LB) CEGAT, Bench, New Delhi (LB) 2. 2002(140) ELT 280 (Tri-LB) CEGAT, Northern Bench, New Delhi (LB) 3. 2003 (151) ELT 443 (Tri-Delhi) 4. 1999 (112) ELT 353 (SC) 5. 2001 (130) ELT 417 (Ker) 6. 2007 (210) ELT 571 (Tri-Bang.) 7. 2008 (223) ELT 149 (Raj.) 8. 2008 (224) ELT 239 (P&H) 9. (2011) 33 STT 491 (Uttrakhand) 10. 2012 (279) ELT 194 (H.P.) 11. 2010 (249) ELT 519 (H.P.)

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HON'BLE SRI JUSTICE G.CHANDRAIAH &

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM C.E.A.Nos. 151, 100, 144, 149, 150, 152, 153, 155, 157, 158, 159, 160 and 161 of 2006

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COMMON JUDGMENT:- (per Hon’ble Sri Justice Challa Kodanda Ram)

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Inasmuch as the issue involved in this batch of thirteen Central Excise Appeals is one and the same, these matters are taken up together for disposal by this Common Judgment.

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Since the facts in all the cases are identical, for the sake of convenience, the facts enumerated in C.E.A.No.151 of 2006 are referred to.

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These appeals filed under Section 35(G) of the Central Excise Act, 1944 arising from Common Final Order Nos.2089 to 2100 of 2005, dated 07.12.2005 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short “CESTAT”), South Zonal Bench at Bangalore, are at the instance of the Commissioner of Central Excise, Tirupathi. In all the appeals, the following substantial question of law is raised for adjudication.

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“Whether the Tribunal, Bangalore, is justified in distinguishing the case law of M/s.Albert David Ltd. v. C.C.E., Meerut reported in 2003(151) ELT 443 (Tri-Delhi) on the lines that final goods

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were not exempted at a time when the inputs had been utilized and hence it is not applicable to the present facts of the case, while the utilization aspect was not the criteria to deny/allow the credit when in fact the decision applies in all force to the present case and more so approved by the Hon’ble Supreme Court supports the case of the revenue.”

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The admitted facts of these appeals are set out as under:

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All the respondents are industries involved in the manufacture of fruit pulp, which was liable for excise duty. The fruit pulp falling under Chapter Sub-Heading No.2001.10 of Central Excise Tariff, 1985 at the relevant point of time was dutiable. Thereafter, vide Notification No.19/1991 dated 24.07.1991, the fruit pulp came to be exempted from duty with effect from 25.07.1991. The respondents-industries were entitled to MODVAT credit on inputs and also packing material under Rule 57A of the Central Excise Rules, 1944 (for short “the Rules”). They had credited the same to their account under RG 23A Part-I and Part-II. Necessary credit entries were made in RC 23A Part-II. On account of exemption from duty on issuance of Notification No.19/91, show cause notices were issued by the Assistant Commissioner as to why;

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a) the credit of duty taken in respect of quantity of 3,493 numbers of empty metal containers held by them as on 25.07.1991 should not be reversed in RG 23A Part-II or paid in cash as the case may be in terms of Rule 57(I) of Central Excise Rules.

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b) The credit of duty was taken in respect of quantity of 66,680 numbers of cans.

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After show cause notices were replied by the assessees

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and elaborate enquiry was conducted, the Assistant Commissioner, by order dated 21.01.2003, dropped the proceedings holding to the following effect:

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(i) I confirm and demand proportionate duty of Rs.6,015/(Rupees six thousands and fifteen only) involved on 3,493 numbers of unutilized empty cans lying with the assessee.

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(ii) I drop further proceedings in respect of 66,680 numbers of cans filled with Mango Pulp lying with the assessee as on 25.07.1991.

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By coming to this conclusion, the Assistant Commissioner had elaborately considered the judgment of the Larger Bench reported in Commissioner of Central Excise, Rajkot vs. Ashok Iron and Steel Fabricators^[1] and also the judgment in Commissioner of Central Excise,

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Delhi vs. Raghuvar (India) Ltd.^[2] . The Department appealed to the Commissioner (Appeals) and also to the CESTAT. Both the appellate authority and the Tribunal confirmed the orders of the Assistant Commissioner. Before the CESTAT, an argument was advanced that a two-member Bench of the Tribunal in the case of

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M/s.Albert David Ltd. vs. C.C.E., Meerut^[3] had held that the credit of unutilized inputs cannot be allowed to be taken once the final product is exempted from duty. The CESTAT did not accept the submission on the ground that the judgment of the Larger Bench in Ashok Iron case (1^st cited supra) stands approved by the Supreme Court in

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the case of Collector vs.Dai Ichi Karkaria Ltd.^[4]

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Sri Jalakam Sathyaram, learned Standing Counsel for the Central Excise and Customs has strenuously contended that the Tribunal ought not to have ignored the order of the Delhi Tribunal in M/s.Albert David case (3^rd cited supra) inasmuch as the same is rendered considering both Ashok Iron case and Dai Ichi case (4^th cited supra). He has further urged that in view of Rule 57(C)(1) of the Rules, once the final product is exempted from duty, the manufacturer is disentitled to utilize the MODVAT / CENVAT credit. He has also submitted that the objective behind the whole scheme of CENVAT credit is to reduce the cascading effect of taxation and make the product cheaper to the consumer, as such, the Tribunal committed grievous error in ignoring the order of the Delhi Tribunal and pointed out that SLP against the order of the Tribunal in M/s.Albert David case was dismissed by the Apex Court.

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On the other hand, Sri S. Arun Kumar and Sri Anandhan Ram Kumar, learned counsel for the respondents have contended that various High Courts have followed the judgment in Ashok Iron case and cited some latest judgments of the High Courts of Himachal Pradesh, Punjab and Haryana. Sri Anandhan Ram Kumar has also filed detailed written arguments enclosing various copies of judgments of other High Courts.

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Having heard the respective counsel and perused the material placed on record, we are unable to accept the

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contentions of the learned Standing Counsel for the Department and do not see any reason to interfere with the orders of the Tribunal. A close scrutiny of the judgment in M/s.Albert David case would reveal that it is not contrary to the principles laid down in Ashok Iron case. The contrary view taken in M/s.Albert David case is on account of the fact that Rule 57(A)(D) of the Rules came to be inserted with effect from 31.03.2000 by Notification No.27/2000-Central Excise (N.T.) and the same was made applicable to the case. This is evident from the observations made by the Tribunal in its order as under:

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“We agree with the findings in the impugned order that the decision in Premier Tyres Ltd. and consequently decision in Ashok Iron and Steel case, is not applicable as these decisions were passed on the ground that there was no provision for reversal of credit. Now there is a specific provision in Rule 57AD which clearly provides that “Cenvat credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods. Rule 57AH contains the provision for the recovery of Cenvat credit utilized wrongly.”

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In that view of the matter, the decision rendered in M/s.Albert David case, does not support the case of the appellants in any manner. We notice that various High Courts have approved the decision of the Larger Bench in Ashok Iron case:

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1) C.C.E vs. Premier Tyres Ltd.^[5] 2) TAFE Limited (Tractor Division) vs. C.C.E.^[6] 3) Hindustan Zinc Ltd. vs. C.C.E.^[7]

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4) C.C.E. vs. CNC Commercial Ltd.^[8]

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5) C.C.E. vs. Apco Pharma Ltd.^[9]

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6) Ranbaxy Laboratories Ltd. vs. C.C.E.^[10] and 7) C.C.E. vs. Saboo Alloys Pvt. Ltd.^[11]

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In the above view of the matter, we are in respectful agreement with the detailed reasoning set out in Ranbaxy case (10^th cited supra) which in fact had dealt the issue in detail.

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Hence, these appeals are devoid of merits and accordingly dismissed. No order as to costs.

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As a sequel to the dismissal of the appeals, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.

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_________________ G. CHANDRAIAH, J

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13.03.2014

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CHALLA KODANDA RAM,J

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Note:- L.R. Copy to be marked