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Commissioner Of Central Excise vs M/S. H A Packers

Customs Excise and Service Tax Appellate Tribunal11 May 2015

Ratio decidendi

The rule this decision rests on

A manufacturer may take Cenvat credit on duty paid on inputs, as provided under Rule 3 of the Cenvat Credit Rules, 2004, where the duty has in fact been paid by the supplier on those inputs; the credit is not defeated merely because the supplier's activity is contended by the Revenue not to amount to manufacture or not to attract duty at the supplier's end, where it is undisputed that duty was paid.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAXAPPELLATE TRIBUNAL, NEW DELHIPRINCIPAL BENCH, COURT NO. IIExcise Appeal No. 53075 of 2014

[Arising out of Order-In-Appeal No. 26/SVS/RTK/2014 dated 28/1/2014 passed by Commissioner of Central Excise (Appeals) Delhi III, Gurgaon]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

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

Commissioner of Central Excise Appellants

Delhi III

Vs.

M/s. H A Packers Respondent

Appearance:

Shri R K Mishra, AR for the Appellants

None for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 11. 5.2015

ORDER NO. FO/A 51670 /2015 SM

Per Ashok Jindal :

Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) has held that respondent has taken Cenvat credit correctly on the strength of invoices issued by the supplier of the goods.

2. The facts of the case are that respondent is engaged in the manufacture of Chewing Tobacco and they have received flexible laminated film and metalized film from M/s. Packotech Industries, Safiabad, Distt. Sonepat, Haryana. The supplier of the goods was paying duty on the invoice received by the respondent and respondent is taking Cenvat credit. The contention of the Revenue is that activity of supplier does not amount to manufacture and supplier was not required to pay duty on the said goods. Therefore, respondent was not entitled to take Cenvat credit. In these set of facts proceedings were initiated against respondents. Both the lower authorities dropped the charge leveled against the show cause notice. Aggrieved from the said order, Revenue is before me.

3. Learned AR appearing on behalf of the Revenue submits that as activity was not leviable to duty on the manufacture and at the end of supplier of the goods. Therefore whatever the duty supplier is paying and when inputs is not leviable to duty, respondent was not liable to Cenvat credit.

4. None appeared on behalf of the respondent and notice of hearing returned back undelivered with the remarks that company is closed.

5. Considering the fact that appeal itself can be disposed of therefore, same is taken up in the absence of respondent for consideration. In this case, it is not in dispute that the supplier of goods have paid the duty on the inputs. As per Rule 3 of Cenvat Credit Rules, 2004 whatever duty has been paid by the assessee on inputs is entitled to take Cenvat credit. Therefore, respondent has taken correctly Cenvat credit on the duty paid on inputs. In these circumstances, I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.

( Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

ss

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