M/S.Albert David Limited vs Cce, Ghaziabad
- CitationExcise Appeal No.E/2287/2011-EX[DB]
Ratio decidendi
The rule this decision rests on
The Tribunal sets aside the impugned order on the footing that the issue is concluded by the decision of the Allahabad High Court in the appellant's own case, as affirmed by the Supreme Court, under which Cenvat credit on LDPE granules that were lost as plastic waste in the manufacture of plastic bottles, where that waste was cleared on payment of duty, is not to be denied merely because the bottles were used to pack fully exempt I.V. Fluids; the Tribunal applies that principle without independently analysing it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.120-CE/GZB/2011-12 dated 27.06.2011 passed by the Commissioner (Appeals), Customs & Central Excise, Ghaziabad]
For approval and signature:
HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR. S.K. MOHANTY, 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?
__________________________________________________
M/s.Albert David Limited Appellant
Vs.
CCE, Ghaziabad Respondent
Present for the Appellant : Shri.Bector Das .
Present for the Respondent: Shri.R.K.Grover, DR
Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 23/04/2015
FINAL ORDER NO. 51539/2015
PER: RAKESH KUMAR
The appellant are manufacturers of I.V. Fluids which are cleared after being packed in plastic bottles. I.V. Fluids are fully exempt from duty. For manufacture of I.V. Fluids, one of the raw-material used is LDPE granules, which is used for manufacture of plastic bottles. In the course of manufacture of plastic bottles, plastic waste also arises. Though the main product I.V. Fluids packed in plastic bottles was fully exempt from duty, the plastic was not exempted from duty and was cleared on payment of duty. The period of dispute in this case is April 2004 to March, 2005. There is no dispute that during this period, the appellant have not availed any cenvat credit in respect of LDPE granules which has gone into manufacture of plastic bottles. The cenvat credit claimed by the appellant is only in respect of that quantity of LDPE granules which has gone into waste and which has been cleared on payment of duty. According to the Department, the Cenvat credit in respect of the quantity of LDPE granules, which has gone into plastic waste cleared on payment of duty would not be admissible as the granules have been used for manufacture of I.V. Fluids, which are fully exempt from duty. After issue of show cause notice, the Joint Commissioner vide Order-in-Original dated 31.03.2011, disallowed the cenvat credit of Rs.22,57,683/- in respect to the plastic granules, which had gone waste in course of manufacture of plastic bottles and which had been cleared on payment of duty. Besides this cenvat credit demand, she also demanded interest on it under section 11AB and imposed penalty of equal amount under Rules 15 of the Cenvat Credit Rules. This order of the Addl. Commissioner was upheld by the Commissioner (Appeals) vide Order in Appeal dated 27.06.2011 against which this appeal has been filed.
2. Heard both the sides.
3. Both the sides agree that the issue involved in this case stands decided by the judgment of Honble Allahabad High Court in the appellants own case reported in 2013 TIOL 621 All. CX, and this judgment of Honble Allahabad High Court has been affirmed by the Apex Court reported in 2014 -TIOL - 36 SC CX. Both sides also agree that relying upon Honble Allahabad High Court judgement the Tribunal in the appellants own case for the previous period has vide final order No.54949/2014 dated 18.12.2014 has set aside the cenvat credit demand in respect of the LDPE granules which had gone waste in the course of manufacture of plastic bottles for packing of I.V. Fluids by the appellant. In view of this, the impugned order is set aside. The appeal is allowed.
[Dictated & Pronounced in the open Court].
(S.K.MOHANTY) (RAKESH KUMAR)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
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