Admissibility of Credit of Excess duty paid by supplier then actually payable

PJ/Case Laws/2012-12/1017

Case: COMMISSIONER OF C. EX., LUDHIANA V/s PERFECT SYNTHETICS

Citation: 2006 (206) E.L.T. 71 (P & H)

Issue:- Excess duty paid by supplier – whether assessee entitled to credit of excess duty or the actual duty payable?

Brief Facts:- Respondent- assessee is engaged in the manufacture of Texturised Polyester yarn and was availing facility of Cenvat credit on capital goods under Rule 57AB of the Central Excise Rules, 1944. It purchased old machinery falling under Heading 84.44 in the month of July, 2000, under Invoice Nos. 124 to 132 dated 8-6-2000, valued at Rs. 28 lacs from M/s. Deviyani Tex. Chem. Pvt. Ltd. Central Excise Duty amounting to Rs. 10,13,518/- was paid on it. The assessee claimed Cenvat credit of Rs. 5,06,759/- (50% of Rs. 10,13,518/-).

The Assistant Commissioner, on scrutiny of the record, observed that as per Explanation to sub-rule 57AB(1)(B) of the new Cenvat Rules, the Excise Duty on the sale of machinery was payable at the rate of 16% only, which, on the sale price of Rs. 28 lacs, worked out to Rs. 4, 48,000/-. He, therefore, observed that out of the sum of Rs. 10,13,518/- paid as Excise Duty, only Rs. 4,48,000/- could be treated as Central Excise Duty and the excess amount of Rs. 5,65,518/- paid by the supplier could not be considered as Central Excise Duty. He was, thus, of the view that the assessee was entitled to Cenvat credit of Rs. 2,24,000/- only (50% of Rs. 4,48,000/-) instead of Rs. 5,06,759/- claimed by it. Accordingly, he disallowed the credit of Rs. 2,82,759/- (506759-224000) and ordered its recovery from the assessee under Rule 57AH of the Rules. The action of the Assistant Commissioner was upheld in appeal by the Commissioner (Appeals).

The Tribunal set aside the impugned order by holding that before sale of the capital goods, the supplier, M/s. Deviyani Tex. Chem. Pvt. Ltd., through letter dated 25th May, 2002 informed the sale of the goods and also clearly mentioned, in that letter that since they had used the machines for three years, the excise duty @ 30% is to be availed and 70% excise duty has to be reversed in PLA. They gave the calculations in that letter and worked out the excise duty payable as Rs. 10,13,518/-. This letter was accepted by the Department without any objection. On the basis of this calculation of the excise duty, the appellants had availed the credit in accordance with law on the strength of invoice dated 9-6-2000 vide which they purchased the machines. The appellants cannot be prevented from taking the credit accordingly on the ground that the duty worked out and paid by the supplier was excessive. The duty had already been accepted by the Department at the time of clearance of the machines by the supplier to the appellants. The ratio of the law laid down in the case of Vikas Hybrids & Electronics Ltd. v. CCE, Jaipur, 2002 (149) E.L.T. 1357, referred to by the learned Commissioner (Appeals) in the order has got no application to the facts of the present case as the facts in the present case are quite different

Against the above decision, Revenue filed appeal before the High Court.

Reasoning of Judgment:- The High Court held that from the facts of the case, it is clear that the calculation of Excise Duty at the time of sale by M/s. Deviyani Tex. Chem. Pvt. Ltd. was duly accepted by the Department without any objection. The assessee had availed credit in accordance with law on the strength of invoice issued by the said party vide which machinery was purchased. In such circumstances, the Tribunal has rightly observed that the assessee could not be prevented from taking credit on the ground that the Duty paid by the supplier was excessive. Even otherwise, the approach of the Revenue is not understandable. It is seeking to disallow Cenvat credit to the extent of Rs. 2,82,759/- against the alleged excess payment of Rs. 5,06,759/- for which there is no claim for refund by any party. It is not, therefore, clear as to how the Revenue is aggrieved by the order of the Tribunal.

Decision:- Appeal dismissed.

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PJ/Case Laws/2012-12/1017

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