Commissioner Of Central Excise, ... vs M/S. India Pistons Ltd

[Arising out of Order-in-Appeal No.21/2009 (M-II), dated 08.05.2009 passed by the Commissioner of Central Excise (Appeals), Chennai]

COMMISSIONER OF CENTRAL EXCISE, CHENNAI-II APPELLANT

Versus

M/s. INDIA PISTONS LTD. RESPONDENT

Appearance:

For the Appellant Shri K.P. Muralidharan, AC (AR)

For the Respondent Shri S. Muthuvenkataraman, Adv.

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 27-10-2015

FINAL ORDER NO. 41643 / 2015

Consequent upon remand of the appeal of Revenue to Tribunal by Hon'ble High Court of Madras in CMA 3235 of 2010 disposed on 02.07.2015, the matter came up today.

2. Revenues grievance is that what that was actual duty leviable on the products sold by M/s. CPCL to M/s. IOCL and in turn such product sold by M/s. IOCL to the respondent is only admissible as Cenvat credit to the Respondent subject to fulfilment of other conditions of the law relating to Cenvat credit. M/s. IOCL collected higher amount of excise duty from the respondent. Therefore, Respondent is not entitled to take credit of such higher amount of duty for the reason that M/s. IOCL was not registered dealer and the realisation by M/s. IOCL was whether deposited by IOCL is not known to record.

3.1 Respondent on the other hand argues that what that is paid by the respondent is expected to have gone into the treasury and in absence of any contrary finding by Revenue showing no payment of duty by Respondent, claim of respondent is undeniable. If M/s. IOCL has not deposited the excess duty collected from respondent, rigour of laws shall be applied against M/s. IOCL but not against the respondent to deny credit to the respondent 3.2. Respondent relied on the decision in Commissioner of Central Excise and Customs Vs MDS Switchgear Ltd. reported in 2008 (229) E.T.T.485 (S.C.) to support his contention that, if any, excess is paid by the respondent, that is immaterial for Revenue to deny Cenvat credit for the reason that assessee has suffered duty against the purchases made from the dealer who dealt with the excisable goods came from M/s. CPCL. Therefore Respondent should not be dragged to litigation by Revenue.

4. Heard both sides and perused the records.

5. In absence of any contrary finding as to non-payment of duty by the respondent or for no deposit of such duty realised from respondent into the treasury by M/s. IOCL. it would be impracticable to deny Cenvat credit to the respondent in respect of the duty paid by it on good faith to M/s. IOCL following the ratio laid down by Apex Court in the case of CCE Vs. MDS Switchgear Ltd.  2008 (229) ELT 485 (SC).

6. In the result, Revenue's appeal is dismissed.

(Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

Ksr/rkp

3 E/00465/2009