Custom, Excise & Service Tax TribunalM/S. Jagatjit Industires Ltd vs Commissioner Of Central Excise on 7 November, 2014IN THE CUSTOMS, EXCISE AND SERVICE TAX

APPELLATE TRIBUNAL, NEW DELHI

PRINCIPAL BENCH, COURT NO. III





Excise  Appeal No. 3291  of  2005-Ex [DB]

Excise   Misc. Application  No. 52364  of  2014-Ex [DB]



[Arising out of Order-In-Appeal  No. 283-CE/CHD/ 2005  dated 29.7.2005  passed   by  Commissioner (Appeals),  Customs and Central Excise, Chandigarh ]



For approval and signature:



Honble Ms. Archana Wadhwa, Member (Judicial)

Honble Mr. Rakesh Kumar, Member (Technical)



1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?


   No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 


      No
3
Whether Their Lordships wish to see the fair copy of the Order?


Seen
4
Whether Order is to be circulated to the Departmental authorities?


Yes


M/s. Jagatjit  Industires  Ltd.                              Appellants

  

               

 Vs.





Commissioner of Central Excise,                           RespondentChandigarh 



Appearance:Shri K Anand, Advocate  for the Appellants

Shri Yashpal Sharma, DR for the Respondent











CORAM:Hon'ble Ms. Archana Wadhwa, Member (Judicial)

Hon'ble Mr. Rakesh Kumar, Member (Technical)



Date of Hearing /decision:     7.11.2014

                                                                    



              ORDER NO. FO/   54462/2014-Ex(Br)



Per Archana Wadhwa (for the Bench):After hearing both the sides, we find that the appellant was the job worker  for M/s Glaxo Smith Kline Consumer Health Care Ltd. and was availing the benefit of  credit of duty paid by M/s Glaxo Smithkline Consumer Healthcare Ltd.,  the principal manufacturer. The appellant was clearing their final product, manufactured on job work basis on payment of duty, by utilizing the credit so availed by them.2.	 The assessments at the end of principal manufacturer were provisional.  The same were finalized subsequently, resulting in short payment of duty to the extent of Rs. 28,78,517/- by the principal manufacturer.  The said duty was paid by M/s Glaxo Smithkline Consumer Healthcare Ltd. under supplementary invoice No. 4218 dated 10.02.2003 and was availed as credit by the present appellant.3.	The dispute relates to the availment of the said credit.  As per the Revenue, principal manufacturer did not voluntarily pay the duty, which was paid only after finalization of the provisional assessment.  It was also alleged in the Show Cause Notice that the duty paid under the cover of supplementary invoices cannot be co-related to the original invoices.4.	During adjudication, the appellant contested both the allegations, which did not find favour with the lower authorities and the credit was denied along with interest and imposition of penalty.Hence the present appeal.5.	After hearing both the sides, duly represented by  Shri K. Anand, learned Advocate appearing for the appellant and Shri Yashpal Sharma, learned DR appearing for the  Revenue, we find that the authorities reliance on the provisions of  Rule 7(1)(b) of  erstwhile Cenvat Credit Rules  is not proper inasmuch as the said Rule  debars availing the Cenvat credit on the basis of supplementary invoices,  where such additional duty became recoverable from the manufacturers on account of non-levy or short levy by reasons of fraud, collusion, or any willful misstatement or suppression of facts or contravention of any provisions with intent to evade payment of duty.    As such, it is clear that said Rule would be invokable only in case of malafide on the part of principal manufacturer.In the present case, admittedly the assessment at the end of principal manufacturer  was provisional and was finalized by a final assessment order dated 27.8.2002.  It is on account of finalization of the provisional assessment that the shortfall to the extent  of Rs.28,78 lakhs approximately was arrived at, which the principal manufacturer  paid  vide supplementary invoice dated 10.2.03.   As such, we agree with the learned advocate that this is not a case of any suppressed production or malafide intent so as to invoke Rule 7(1)(b).6.	At this stage, we may also refer to Tribunals decision in the case ofHyundai Motors  India  Ltd. vs. CCE[2008 (222)  ELT  471 (Tri-Chennai)] wherein  it was observed that short payment of duty by principal manufacturer, which is on account of disputed adjudication going on, will not amount to suppression, thus denying the credit to the job worker.7.	We also note that principal manufacturer has  given a certificate to the extent that supplementary invoices raised on 10.2.03  relates to invoices mentioned in  the list of original invoices, and  enclosed as annexure A, there is no rebuttal to the said certificate.8.	In view of the above, we find no justifiable reasons to uphold the impugned orders of the authorities below.    Accordingly, the same are  set aside and appeal allowed with consequential relief to the appellant.9.	Misc. application for extension of stay is also disposed of.(Pronounced  in the open court )

     



                                                                               (  Archana Wadhwa   )        					                               Member(Judicial)

     

     

          

       

       

(   Rakesh Kumar   )                                   Member(Technical)

  ss 		









??



??



??



??5