Whether issue of credit admissibility appealable to High Court or not?

PJ/CASE LAW/2015-16/2648

Case:-COMMISSIONER VERSUSINDIAN FARMERS FERTILIZERS CORPN. LTD.

Citation:-2014 (305) E.L.T. 49 (Guj.)

Brief facts:- Revenue is in appeal against the judgment of CESTAT dated 12-6-2012 [2013 (287)E.L.T.467 (Tribunal)]. The case of the department is that the respondent-manufacturer had received capital goods in the nature of machinery which were utilised for manufacturer of fertilizer and availed Cenvat credit on such capital goods without payment of duty. According to the department, the capital goods were used in manufacturing Ammonia which in turn was utilised for manufacture of fertiliser which was an exempt item. According to the department therefore, the respondent was not entitled to claim Cenvat credit on such capital goods in terms of Cenvat Credit Rules, 2004.
The respondent’s case however, all along has been that in the course of production of Ammonia, a by-product Carbon dioxide also comes into existence which the respondent sold in the open market before and even after installation of the capital goods in question. Rule 6(4) of the Cenvat Credit Rules, 2004, therefore, does not disentitle the respondent from claiming such credit. The Tribunal ruled in favour of the respondent. Hence, the departmental appeal.

Appellant’s contention:- The learned counsel, Shri Ravani for the department insisted that appeal is maintainable. He submitted that the appeal does not involve any question of duty or any other question which in terms of Section 35L of the Central Excise Act, 1944, cannot be entertained by this Court.
Section 35L of the Central Excise Act reads as under :
“35L. Appeal to the Supreme Court. -An appeal shall lie to the Supreme Court from -
(a) any judgment of the High Court delivered -
(i)        In an appeal made under section 35G; or
(ii)        On a reference made under section 35G by the Appellate Tribunal before the first day of July, 2003;
(iii)       On a reference made under section 35H.
in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or
(b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.”
In terms of Section 35L of the Excise Act, therefore, any order passed by the Appellate Tribunal relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment, must lie before the Supreme Court. Corresponding provision is made also in Section 35G of the Central Excise Act, 1944 pertaining to appeal to High Court in which such appeals arising out of the order of Tribunal relating among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment, are excluded from purview of the High Court.

Respondent’s contention:- The learned counsel Shri P.K. Sahu for the respondent raised a preliminary objection about maintainability of this appeal. He drew out attention to Section 35G of the Central Excise Act, 1944, to contend that since the issue involved is one having relation to the rate of duty payable by the respondent, the appeal must lie before the Supreme Court. In support of his contention, he relied on following decisions of Karnataka High Court which had taken such a view :
(1)       CCE, Mangalore v. Mangalore Refinery & Petrochems Ltd. reported in 2012 (280)E.L.T.383 (Kar.) = 2013 (29)S.T.R.433 (Kar.)
(2)       Commissioner of C. Ex., Bangalore v. Switchgear & Control Technics P. Ltd. reported in 2011 (269)E.L.T.496 (Kar.)
(3)       Commissioner of C. Ex., Mysore v. Jaladarshini Pipes Pvt. Ltd. reported in 2011 (271)E.L.T.30 (Kar.) = 2012 (26)S.T.R.594 (Kar.)
(4)       Commissioner of C. Ex., Mangalore v. Rajashri Packagers Ltd. reported in 2011 (268)E.L.T.337 (Kar.)

Reasoning of judgement:- Short question therefore, is does this appeal involve any such question. They have briefly referred to the controversy between the parties in order to ascertain this. They have noticed that dispute between the department and the manufacturer is confined to the question whether in terms of Rule 6(4) of the Cenvat Credit Rules, 2004, the respondent could have availed the Cenvat credit on the capital goods. As per the department since the capital goods were used for manufacture of duty exempt product, Rule 6(4) would preclude the respondent from claiming any such Cenvat credit. The respondent contends that Ammonia was not the sole product manufactured by the respondent which was used for manufacturing of fertilizer but a by-product carbon dioxide comes into existence which is sold in the market after paying duty.
Whatever be the validity of the rival contentions, in their opinion, the sole question involved is whether Cenvat credit was available in terms of Rule 6(4) of the Rules or not. This question has no relation to the rate of duty or the value of goods for the purpose of collecting duty. Though strongly canvassed before them they do not see how such a question can be seen to be one of classification. They are conscious that a question of classification of a product is also considered a part of the question relating to the rate of duty. Such not being the question in the present case, they do not see how the appeal is not maintainable. They are of the opinion that the question requires consideration.
Theyare conscious of the decision of the Supreme Court in case of Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs reported in 1993 (68)E.L.T.3 (S.C.)in which following observations were made :
“11. It will be seen that sub-section (5) uses the said expression ‘determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment’ and the Explanation thereto provides a definition of it ‘for the purposes of this sub-section’. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes/of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning they have, given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to eases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods.”
In the result, appeal is admitted for consideration of following substantial question of law:
“Whether the Tribunal was right in law and on facts in holding that the respondent-manufacturer was entitled to avail of Cenvat credit on capital goods on the premise that such capital goods were used for manufacture of not only Ammonia used for manufacture of fertilizer which was exempted from duty but also in the process manufactured a by-product namely, carbon dioxide which was sold in the open market after payment of duty and that therefore, the limitation contained in Rule 6(4) of the Cenvat Credit Rules, 2004 would not apply?”
In view of the above findings, the appeal was admitted in the High Court.

Decision:-Appeal admitted.

Comment:- The crux of the case is that the issue of credit availment on capital goods does not has any relation to rate of duty or classification so as to be directly appealable to the Supreme Court. The High Court does not has jurisdiction to decide the cases pertaining to having relation with rate of duty, valuation of goods or classification and appeal in such cases lies to the Supreme Court only. As in the present case, the issue does not pertain to rate or valuation or classification and so the appeal was admitted by the High Court.

Prepared by:- Monika Tak

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PJ/CASE LAW/2015-16/2648

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