Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2949

Whether exemption is available if inputs are captively used for final products which are exempted?

Case:-AMBUJA CEMENT LTD. VersusCOMMISSIONER OF C. EX., CHANDIGARH

Citation:-2015 (326) E.L.T. 13 (S.C.)

Brief facts:-The appellant is the manufacturer of cement. For manufacturing of cement, clinker is the raw material/input. Clinker is also manufactured by the appellant in its factory located in the ‘Industrial Growth Centre’ in Himachal Pradesh. It is cleared from the factory upon payment of duty as a final product because of the reason that there is no exemption available in respect of clinker which is cleared from the factory as a final product and is dutiable.
Clinker and Cement are dutiable products under Chapter 25 of the First Schedule to the Central Excise Tariff Act, 1985. However, cement is exempt from payment of duty under Exemption Notification No. 50/2003-C.E., dated 10-6-2003, since it is manufactured and cleared from the factory of the appellant which is located in the ‘Industrial Growth Centre’ in Himachal Pradesh. Thus, on this final product, viz., cement, no duty is payable as it is exempted from payment of duty. To this extent, there is no dispute.
In this manner, the appellant is a manufacturer of a ‘dutiable final product’ (Clinker) as well as ‘exempted final product’ (Cement), as contemplated in Clause (vi) of the Notification.
As per appellant “Clinker” is covered by the Exemption Notification No. 67/1995. The relevant portion of Notification No. 67/95 is extracted below :-
“Exemption to all capital goods and inputs if captively consumed within the factory of production. -In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), (hereinafter referred to as the said Special Importance Act), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts -
(i) capital goods as defined in the Cenvat Credit Rules, 2002 manufactured in a factory and used within the factory of production;
(ii) goods specified in column (1) of the Table hereto annexed (hereinafter referred to as ‘inputs’) manufactured in a factory and used within the factory of production in or in relation to the manufacture of final products specified in column (2) of the said Table;
from the whole of the duty of excise leviable thereon which is specified in the Schedules to the Central Excise Tariff Act, 1985 (5 of 1986) or additional duty of excise leviable thereon, which is specified in the Schedule to the said Special Importance Act :
Provided that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise or additional duty of excise leviable thereon, or are chargeable to nil rate of duty, other than those goods which are cleared, -
(i)        to a unit in a Free Trade Zone, or
(ii)        to a hundred per cent Export Oriented Undertaking, or
(iii)       to a unit in an Electronic Hardware Technology Part, or
(iv)       to a unit in a Software Technology Part, or
(v)       under Notification No. 108/95-Central Excise, dated the 28th August, 1995, or
(vi)       by a manufacturer of dutiable and exempted final products, after discharging the obligation prescribed in rule 6 of the Cenvat Credit Rules, 2001.

Description of Inputs Description of final products
(1) (2)
All goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than light diesel oil, All goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than following, namely :-
high speed diesel oil and motor spirit, commonly known as petrol. (i)        matches;
(ii)        fabrics of cotton or man-made fibres falling under Chapter 52, Chapter 54 or Chapter 55 of the First Schedule to the said Act;
(iii)       fabrics of cotton or man-made fibres falling under heading No. 58.01, 58.02, 58.06 (other than goods falling under sub-heading No. 5806.20), 60.01 or 60.02 (other than goods falling under sub-heading No. 6002.10) of the First Schedule to the said Act.

 
As per clause (ii), with which they are concerned,goods specified under column (1) of the table which are inputs and manufactured in a factory and used within the factory of production in or in relation to manufacture of the final products specified in column (2) of the said table, are exempted from payment of excise duty.
Thus, if the input is specified in column (1) and it is manufactured in its factory and at the same time captively used in or in relation to the manufacture of the final product, the same is exempted from duty.
If one were to apply this clause, there is nodispute that Clinker would be an item which would be covered by column (1) of the Table as column (1) of the Table mentions of goods falling under the First Schedule to the Central Excise Tariff Act, 1985, with the exception of certain goods (inputs) specifically excluded and clinker is not one of those inputs. However, proviso appended to this Notification excludes those inputs where these are used in or in relation to the manufacture of the final product and that final product is also exempt.

Appellant’s contention:-The contention of the appellant was that since the exempted goods (‘Cement’) is cleared by the appellant who is a manufacturer of (a) ‘dutiable final products’ (‘Clinker’); and (b) ‘exempted final products’ (‘Cement’) after discharging the “obligation” prescribed in Rule 6 of the Cenvat Credit Rules, 2001, clause (vi) of the notification applies. In such a case, exemption is available in respect of ‘Clinker’ which is captively consumed in the manufacture of ‘Cement’ as per the opening part of the Notification.

Respondent’s Contention:-The contention of respondent was that they find that the Clinker is used as input for production of Cement and Cement is exempted from the excise duty. Therefore, by virtue of this proviso insofar as Clinker is concerned, Exemption Notification would not apply. However, the matter does not end here inasmuch as the proviso itself is not applicable under certain circumstances as mentioned therein, viz., in respect of those goods which are cleared under six circumstances. They are concerned here with clause (vi) which states that if goods are cleared by a manufacturer of dutiable and exempted final products after discharging the obligation prescribed in Rule 6 of the Cenvat Credit Rules, 2001, then proviso would not apply. Therefore, the outcome of this case depends upon the answer to the question as to whether in the instant case, the appellants are discharging the obligation prescribed in Rule 6 of the Cenvat Credit Rules. On facts, there is no dispute that appellants havedischarged the ‘obligation’ prescribed in Rule 6 of the Cenvat Credit Rules. The respondent have not even disputed the same.

Reasoning of judgement:-After considering the submission of both the parties it was found that  as per the CESTAT, Rule 6 applies only if somefinal product is partly exempt and partly dutiable. However, they do not find any such restriction in Rule 6 which contemplates the situation where a manufacturer produces (a) final products which are chargeable to duty, as well as; (b) exempted goods. The Rule does not provide that the same final product should be partly dutiable and partly exempted. On the contrary, this Rule relates to taking of Cenvat credit in respect of ‘inputs’.
This Rule is not applicable as such in its totality since taking of Cenvat credit is not in issue in these cases. On the other hand, relevance of this Rule is only to the extent of ‘obligation’ contained in the said Rule which is to be discharged. A plain reading of clause (vi) of the notification would show that it only contemplates a situation where ‘a manufacturer manufactures both dutiable as well as exempt final products’. There may be different final products manufactured by the same manufacturer. The final products may be made out of the same product or out of different products. Clause (vi) does not contemplate that the manufacturer should manufacture only ‘one final product’ or that if he manufactures only one product that product itself should be both dutiable and exempted. The basis adopted by the CESTAT that the ‘same final product’ should be partly dutiable and partly exempt, is neither a requirement of clause (vi) nor a requirement of Rule 6.

Decision:-The appeal is allowed.

Comment:- The crux of the case is that all capital goods and inputs if captively consumed within the factory of production are exempted as per Notification No 67/95-C.E. But this shall not apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise or additional duty of excise leviable thereon or are chargeable to nil rate of duty, other than those goods which are cleared by a manufacturer of dutiable and exempted final products, after discharging the obligation prescribed in rule 6 of the CENVAT Credit Rules, 2001. Furthermore, Rule 6 applies only if somefinal product is partly exempt and partly dutiable. Therefore in the present case exemption is available to assessee on the ground that assessee was discharging the obligation prescribed in rule 6 of the CENVAT Credit Rules, 2001 and is also a manufacturer of a ‘dutiable final product’ (Clinker) as well as ‘exempted final product’ (Cement).

Submitted by:- somya 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