Case Law Details
Sun Pharmaceuticals Industries Limited Vs C.C.E. & S.T. (CESTAT Ahmedabad)
CESTAT find that the department raised the demand assuming that the appellant have taken Cenvat credit on steel material at the time of use thereof. Therefore, the demand was raised on the scrap of such material. However, in the SCN no evidence was adduced even of a sample case that the appellant have availed Cenvat credit in the goods in question. Moreover, the appellant have submitted the purchase register and the Cenvat register for the relevant period from which, it can be clearly established that the appellant have not availed the cenvat credit on the goods except on the pipes. I am unable to understand what more material can be provided by the appellant to establish the fact that the Cenvat credit has not been availed. Moreover without any single evidence of taking credit in the SCN, the SCN is bald and the proceedings flowing from the said SCN liable to be quashed on this threshold point itself. I am fully convinced with the appellant’s submission that they have not availed any Cenvat credit on the goods on which the demand was raised.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellants are engaged in manufacture of medicaments. At the time of maintenance of the plant and machineries they undertook the activity to change old pipes, metal sheets, TMT Bars, steel bars, Beams, Angels connected to those machineries. While changing the said material the old material became waste and the same were sold after making into pieces. The case of the Department is that the appellant on removal of this waste and scrap is required to pay the duty in terms of Rule 3(5A) of Cenvat Credit Rules, 2004. This contention of the revenue is on assumption that the appellant might have taken the Cenvat credit on the goods at the time of use thereof in their machineries.
2. Shri A. B Nawal, Learned Cost Accountant appearing on behalf of the appellant submits that out of the total scrap sold by them only in respect of pipes, the Cenvat credit was taken, therefore on the sale of pipes as waste and scrap, the appellant have discharged the excess duty. On other material, the appellants have not taken the Cenvat credit. He submits that to prove that the Cenvat credit on other material was not taken the appellant have submitted the purchase registered as well as the Cenvat register of the relevant period from which it is clearly established that the appellant except on the pipe, on no other material credit was taken. Therefore, the confirmation of demand is not sustainable. In support he placed reliance on the following judgments:
- Prism Cement Ltd.- 2008 (232) ELT. 564 (Tri-Del.)
- Prism Cement Ltd.- 2009 (243) ELT 231 (Tri.-Del.)
- Alembic Industries Ltd., -2009(233) ELT 392 (Tri.- Ahmd.)
- Tempo Instruments & Equipments (I) Pvt Ltd.- 2008 (225) ELT 444 (Tri.-Ahmd.)
- Larsen & Toubro Ltd.- 2008 (228) ELT 294 (Tri.- Mumbai)
- Union Of India – 2008 (223) ELT 342 Raj.)
- Banswara Textile Mills Ltd.- 2005 (183) ELT 318 (Tri.- Del.)
- Grasim Industries- 2009 (233) ELT 412 (Tri.- Del.)
- Grasim Industries Ltd.- 2011 (273) ELT 10 (S.C)
- Sangam Spinners Ltd. -2005 (182) ELT. 192 (Tri.- Del.)
- Ujagar Prints (ll) V. Union of India, (1989) 3 SCC 488= 1988 (38) ELT 535 (S.C)
- Union of India – 2003 (11) SCC 129 = 2003 (158) ELT 3 (S.C)
- Meghmani Dyes & Intermediates Ltd. – 2013 (288) ELT 514 (Guj.)
- Emcure Pharmaceuticals Ltd.- 2016 (342) ELT 172 (Bom)
- Continental Foundation Jt. Venture – 2007 (216) ELT 177 (S.C)
- Lubri-Chem Industries Ltd.- 1994(73) ELT. 257 (S.C)
3. Shri Tara Prakash, Learned Assistant Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. I have carefully considered the submissions made by both the sides and perused the records. I find that the department raised the demand assuming that the appellant have taken Cenvat credit on steel material at the time of use thereof. Therefore, the demand was raised on the scrap of such material. However, in the SCN no evidence was adduced even of a sample case that the appellant have availed Cenvat credit in the goods in question. Moreover, the appellant have submitted the purchase register and the Cenvat register for the relevant period from which, it can be clearly established that the appellant have not availed the cenvat credit on the goods except on the pipes. I am unable to understand what more material can be provided by the appellant to establish the fact that the Cenvat credit has not been availed. Moreover without any single evidence of taking credit in the SCN, the SCN is bald and the proceedings flowing from the said SCN liable to be quashed on this threshold point itself. I am fully convinced with the appellant’s submission that they have not availed any Cenvat credit on the goods on which the demand was raised.
5. Accordingly, I set aside the impugned order and allowed the appeal with consequential relief.
(Pronounced in the open Court on 19.01.2023)
