Hindustan Coca-Cola Beverages (P) Ltd vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 15-2009 dated 22/04/2009 passed by CCE(Appeals), Guntur]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

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?

HINDUSTAN COCA-COLA BEVERAGES (P) LTD 3RD FLOOR, ORCHID CENTRE, GOLF COURSE ROAD, SECTION 53 GURGAON Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax GUNTUR NULL P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, - 520004 ANDHRA PRADESH Respondent(s)

Appearance:

Shri B. Raghavendra, Advocate LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant

Shri Mohd. Yusuf, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 20/02/2015

Date of Decision: 20/02/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 20870 / 2015

Per : ARCHANA WADHWA

The appellant is engaged in the manufacture of aerated waters under different brand names and procures bottles as also plastic crates for use in the manufacture and clearance of the said aerated waters. The duty paid on the same is availed as credit by the appellant and utilised for payment of duty at the time of final clearance from their factory.

2. However these glass bottles and plastic crates are reusable products and are returned by the dealers or the appellant collects the same from various sources and bring back the same in the factory for further utilisation. Sometimes these bottles and plastic crates which are already used and returned by the dealers, are cleared by the appellants to the other manufacturers of the same items.

3. The Revenues contention is that at the time of clearance of the said reused bottles and crates, the appellant is required to reverse the CENVAT credit availed by them originally at the time of receipt of the fresh bottles. Accordingly in terms of the provisions of Rule 3(4), proceedings were initiated against the appellant for confirmation of demand of duty in respect of bottles cleared during May 2003 to July 2003, by way of issuance of a show-cause notice on 29/09/2006. On adjudication, the confirmation of duty demand of Rs.35,90,261/- along with interest and imposition of penalty of identical amount took place. The order passed by the original adjudicating authority was confirmed by the Commissioner(Appeals). Hence the present appeal.

4. There is no doubt about the fact that the appellant had availed the credit at the time of original receipt of the bottles and plastic crates and properly utilised the said credit at the time of clearance of the aerated waters. The entire legal transaction ended at the particular point of time. When the appellant again brought back the reused bottles or plastic crates, no credit of duty was ever availed by them. Further it is impossible to connect the returned reused bottles and crates with the freshly received bottles at the time of the first use of the same. When no credit stands availed by the appellant at the time of receipt of the used bottles, I really fail to understand the Revenues case for reversal of the credit. The stand of the Revenue that the credit to the extent availed at the time of original receipt of the bottles should be debited, cannot be appreciated. The original fresh bottles and crates were used by the appellants at the time of clearance and the credit was used at that particular point of time, thus meeting with the requirements of the CENVAT Credit Rules. The second time reversal of the credit, as insisted by the Revenue, is not in accordance with any provisions of the CENVAT Credit Rules and cannot be upheld. The issue also stands decided by the earlier decision of the Bench in the case of Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. CCE [2009(236) ELT 195 (Tri. Bang.)].

5. In view of the above, I find no merits in the above stand of the Revenue. Accordingly the impugned order is set aside and appeal is allowed with consequential relief, if any, to the appellant.

(Pronounced in court)

ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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