Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2750

Whether CENVAT credit can be avail on activity of packing or repacking, labelling or relabeling, inspection etc?

Case:- HONDA MOTOR INDIA PVT. LTD. Versus COMMISSIONER OF C. EX., CHENNAI-II
 
Citation:-2015 (318) E.L.T. 163 (Tri. - Chennai)
 
Brief facts:- The relevant facts of the case, in brief, are that the applicants are registered with the central excise department as “Deemed Manufacturer” of spare parts classifiable under Chapter Heading 8708 of the First Schedule to the Central Excise Tariff Act, 1985. The applicants are procuring their inputs from three different sources. The spare parts are received from their warehouses situated at Mumbai, Kolkata, Greater Noida and Bhiwadi on stock transfer basis. Further, they are also importing automobile spare parts. They are also purchasing spare parts from vendors in bulk quantity. They are undertaking the activity of packing or repacking, labeling or relabeling, inspection etc. The applicants availed Cenvat credit on the spare parts and cleared the goods on payment of duty.
Show-cause notices dated 5-6-2013 and 19-11-2013 were issued proposing to deny the Cenvat credit for the period from November 2008 to October 2012 and from November 2012 to August 2013 respectively. In the Show Cause Notice dated 5-4-2013, it has been alleged that they imported certain automobile parts/components by adopting MRP valuation under Section 4A of the Central Excise Act, 1944 and availed Cenvat credit thereon. As the applicant declared MRP at the time of import, their manufacturing activity had been completed at the Port itself. They are not eligible to avail Cenvat credit at their factory. The adjudicating authority by separate adjudication orders denied the Cenvat credit and confirmed the demand of Rs. 57,69,61,914/- and Rs. 13,14,22,320/- against the show-cause notices along with interest and penalties on the applicant-company and also imposed penalty on the Manager and the Deputy Manager.
 
Appellant’s contention:-The learned counsel for the applicant submits that there is no dispute that the applicant undertook various process namely inspection, quality checking and repacking of the goods. After repacking, they are affixing the sticker “Marketed by” and the tape having markings of “HONDA”. He drew the attention of the Bench to the provisions of Section 2(f) of the Central Excise Act, 1944. It is contended that after the amendment of Section 2(f) with effect from 1-3-2003, the processes packing or repacking in a unit container or labeling or re-labelling of containers would amount to manufacture.
It is submitted that in the present case, the processes undertaken by the applicant would cover within the definition of Section 2(f) of the Central Excise Act, 1944 and therefore there is no reason to deny the CENVAT credit.
It is further contended that the applicant availed Cenvat credit and paid the duty on the final product and there is no reason to deny the CENVAT credit. It is further submitted that credit taken is less than or equal to the duty paid on the finished goods. He submits that the adjudicating authority proceeded on the basis of various case laws which are prior to amendment to Section 2(f) with effect from 1-3-2003.
 
Respondent’s contention:-The learned Authorized Representative for Revenue reiterates the findings of the adjudicating authority. He particularly drew the attention of the Bench the decision of the Tribunal in the case of Johnson & Johnson Ltd. v. CCE - 2003 (156)E.L.T.134 which was upheld by the Hon’ble Supreme Court as reported in 2005 (188)E.L.T.467 (S.C.). He submits that in the present case the applicants have not fulfilled any of the conditions as provided in clause (iii) of Section 2(f) of the Act.
He submits that in this case the goods were received in retail pack and MRP has been affixed and the compliance of the Metrological Act was done at the time of importation and therefore there is no repacking from bulk to unit container as also from unit to unit container and only inspection was done.
The purpose of relabelling of the goods is to convey the customer information about the product for making a decision for buying the product. He relied upon the decision of the Hon’ble Supreme Court in the case of Metagraphs Pvt. Ltd. v. Collector of Central Excise - 1996 (88)E.L.T.630 (S.C.).
Mere affixing of the brand would not amount to relabeling of the goods. The goods were already in marketable condition and therefore there were no treatment on the goods for rendering the goods further marketable. He relied upon the decision of the Hon’ble Madras High Court in the case of CCE v. Indian Additives Ltd. - 2014 (302)E.L.T.544 (Mad.). He also relied upon the decision of the Authority for Advance Rulings in the case of Amazon Seller Services Pvt. Ltd. - 2012 (285)E.L.T.449 (A.A.R.) wherein it has been held that value addition is a relevant condition for activity to be treated as manufacture.
 
Reasoning of judgement:- They find that the issue involved in this case is whether the activity of inspection, labelling, affixing of stickers or re-labelling amounts to manufacture or not and whether the applicant is eligible to avail CENVAT credit. They find that the definition of ‘Manufacture’ under Section 2(f) of the Central Excise Act, 1944 with effect from 1-3-2003 is as under:-
(f) “manufacture” includes any process, -
(i) incidental or ancillary to the completion of a manufactured product;
(ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or
(iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer.
There is no dispute that the final products are classifiable under Chapter 87 of CETA and the applicant cleared the goods on payment of duty. Prior to 1-3-2003, the provisions of “Deemed Manufacturer” was inserted in the Chapter Note. Such as, Note 5 of Chapter 30 was as under :-
“In relation to products of Heading No. 30.03, conversion of powder into tablets or capsules, labelling or re-labelling of containers intended for consumers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to ‘manufacture’.
On perusal of the impugned adjudication order, they find that after receiving the imported goods in the warehouse, the applicant undertook the activity of inspection, quality check and repacked it. While repacking, the applicant affixed sticker “Marketed by” and also affixed the tape having the markings of HONDA. Similarly, when the goods were imported in any of the warehouse situated at Mumbai, Kolkata, Greater Noida and Bhiwadi, and in that case “Imported and Packed by” sticker was affixed by respective warehouse and the goods were transferred on stock transfer basis to Chennai from where it was marketed by affixing sticker/labelling. On plain reading of clause (iii) of Section 2(f) of the said Act, it is clear that “manufacture” would include packing/repacking of such goods in unit container or labelling/re-labelling of containers including the declaration or alteration of retail sale price on it for rendering the product marketable to the consumer. With effect from 1-3-2003, the definition of ‘manufacture’ under Section 2(f) has wide amplification. Note 5 of Chapter 30 insofar as prior to amendment on 1-3-2003, it would be “repacking from bulk packs to retail packs”. But after the amendment, it includes “packing or repacking of such goods in a unit container”. In other words, it includes any repacking in unit container.
In the present case, prima facie, they find there is inspection, repacking and relabelling of the container from unit to unit container or bulk to unit container. Thus, there is repacking of such goods in container and covered within the definition of “manufacture” under Section 2(f) of the Act, 1944. The case laws relied upon by the learned AR relating to the definition of Section 2(f) is prior to amendment of Section 2(f) as on 1-3-2003. So, it is not necessary to discuss those case laws at this stage. The decision of the Authority for Advance Rulings in the case of Amazon Seller Services Pvt. Ltd. (supra) is in the context of activities provided online to facilitate the sale of goods by various merchants. The facts of the said case are not applicable to the present case. On a query from the Bench, the learned counsel for the applicant submits that the entire Cenvat credit which they have availed are utilized for payment of duties on repacked goods. This Tribunal in the case of M/s. Godrej Consumer Products Ltd. v. CCE, Puducherry, vide Stay Order No. 41031/2014, dated 3-6-2014, after following the decision of the Hon’ble Supreme Court in the case of CCE v. Narmada Chematur Pharmaceuticals Ltd. – 2005 (179)E.L.T.276 (S.C.) granted unconditional stay on the identical situation. In that case the Hon’ble Supreme Court held that when the amount of Cenvat credit wrongly availed is exactly equivalent to the amount of excise duty paid by not availing the exemption, the consequence is revenue neutral and hence demand of such wrong availment of credit has been rightly quashed by the Tribunal.
After considering the submissions of both sides, they find that the applicant has made out a strong prima facie case for waiver of pre-deposit of entire dues. Accordingly, pre-deposit of duty along with interest and penalties are waived and recovery thereof stayed during the pendency of the appeals. All the stay applications are allowed.
They find that there are several appeals pending on this identical issue and therefore they direct the Registry to list all the appeals including the present appeals for hearing on 29-1-2015.
 
Decision:- Stay granted.
 
Comment:-The crux of the case is that manufacture includes repacking and relabeling of goods from unit to unit container or bulk to unit container. In present case, imported goods received in warehouse and after inspection, repacked and re-labelled before transferring the stock. Cenvat credit eligible as entire credit availed or utilized for payment of duties on repacked goods. Credit taken is less than or equal to the duty paid on the finished goods. Hence activity of packing or repacking, labelling or relabeling, inspection etc. is considered as manufacture and credit can be availed on it.

Prepared by:- Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com