Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE-LAW/2015-16/2746

Whether credit reversal required if activity is held as not amounting to manufacture?

Case-R.B. STEEL SERVICES VERSUS COMMR. OF C. EX. & S.T., ROHTAK
 
Citation- 2015 (318) E.L.T. 139 (Tri. - Del.)
 

Brief Facts-The brief facts of the case are that the stay application along with appeal has been filed against Order-in-Original No. 50/CE/Comm/DM/RTK/ 2013-14, dated 30-9-2013 in terms of which the adjudicating authority held that converting black rods/bars into bright bars did not amount to manufacture during the relevant period (May 2003-April 2004) and therefore, the Cenvat credit taken on capital goods/black rods/bars used for making bright bars was not admissible. As a consequence the adjudicating authority disallowed the Cenvat credit of Rs. 68,24,147/- and ordered recovery of the same alongwith interest and also imposed mandatory penalty of Rs. 68,24,147/-. It is also seen out of total demand of Rs. 68,24,147/-, demand of Rs. 67,72,047/- relates to the credit taken on the inputs and demand of Rs. 52,100/- relates to the credit taken on capital goods.
 
Appellants Contention- The appellants have contended that their process amounted to manufacture, they had been paying duty on their product namely bright bars and the total duty paid by them is more than the amount of credit taken. In this scenario, they contended that the question of wilful mis-statement/suppression of facts with intent to evade payment of duty simply would not arise. They also cited a large number of judgments to the effect that if the duty has been paid on the final product which is more than the amount of credit taken then the question of reversal of the Cenvat credit taken on the ground that the process did not amount to manufacture would not arise.
The contention of the learned Counsel is that the appellants has processed the inputs and the same has been cleared on payment of duty therefore, if their activity is to be held as amounts to manufacture, the duty paid for clearance may be treated as reversal of Cenvat credit in the light of the decision of this Tribunal in the case of Ajinkya Enterprises -2013 (288)E.L.T.247 (T) = 2011-TIOI.-1333-CESTAT-MUMwhich has been affirmed by the High Court of Bombay in 2013 (294)E.L.T.203 (Bom.) = 2012-TIOL-578-HC-MUM-CX.”
 
Respondents Contention-The respondent reiterated the findings of the lower adjudicating authority.
 
Reasoning Of Judgement-The tribunal have considered the submissions and as the issue is covered by various judicial pronouncements, with the consent of the ld. AR, proceed to decide the appeal itself waiving the requirement of pre-deposit. That the process of conversion of black bars/rods into bright bars does not amount to manufacture was declared by the Hon’ble Supreme Court in the case of Vee Kayan Industriesv. Collector of CE, Chandigarh- 1996 (83)E.L.T.262 (S.C.). It was also followed by CESTAT in the case of Geeta Bright Bar Works Pvt. Ltd.v. CCE, Mumbai-V-2012 (277)E.L.T.67 (Tri. - Mumbai). Thus it is pointless to indulge in any discussion regarding the contention of the appellants that their process amounted to manufacture as the issue is no longer res integra for the relevant period. It is seen that in the case of Super Forgings and Steels Ltd. v. CCE, Chennai- 2007 (217)E.L.T.559 (Tri.-Chennai), CESTAT held that there is no question of recovery of Cenvat credit which has been utilized towards payment of duty of the final products even when the process did not amount to manufacture. In the case of CCE, Indorev. M.P. Telelinks Ltd.- 2004 (178)E.L.T.167 (Tri.-Del.)CESTAT held that if the department levies and collects the Central Excise duty on the goods remove from the factory, they cannot claim for the purpose of allowing Cenvat credit that the process of manufacture had not taken place. Similar view was held by CESTAT in the case of CCE, J&K Jammuv. North Sun Enterprises Industrial Estate - 2012 (284)E.L.T.75 (Tri.-Del.). Recently CESTAT in the case of Plyrub Extrusions (I) Pvt. Ltd.v. CCE, Belapur - 2014-TIOL-1867-CESTAT-MUM has held as under :
 
 “3.The contention of the learned Counsel is that the appellants has processed the inputs and the same has been cleared on payment of duty therefore, if their activity is to be held as amounts to manufacture, the duty paid for clearance may be treated as reversal of Cenvat credit in the light of the decision of this Tribunal in the case of Ajinkya Enterprises -2013 (288)E.L.T.247 (T) = 2011-TIOI.-1333-CESTAT-MUM which has been affirmed by the High Court of Bombay in 2013 (294)E.L.T.203 (Bom.) = 2012-TIOL-578-HC-MUM-CX.”
 
As the issue is no longer res integra in the light of this Tribunal in the case of Ajinkya Enterprises(supra) which has been affirmed by the Hon’ble Bombay High Court therefore, we hold that the appellant is entitled for Cenvat credit. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any. In the light of the foregoing, the appeal is allowed.
 
Decision:- Appeal allowed.

Comment:- The gist of the case is that if the amount of duty paid on the final product is more than that of credit taken and if the department is collecting and levying excise duty at the time of removal then the question of reversal of cenvat credit on the ground that the process does not amount to manufacture would not arise. This was base on the landmark decision in the case ofAjinkya Enterprises affirmed by Bombay High Court.

Prepared By:- Neelam Jain
 

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