14-CEXA-154-2015.DOC
Jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO. 154 OF 2015
WITH
CENTRAL EXCISE APPEAL NO. 210 OF 2016
WITH
CENTRAL EXCISE APPEAL NO. 211 OF 2016
WITH
CENTRAL EXCISE APPEAL NO. 212 OF 2016
The Commissioner of Central Excise,
Customs & Service Tax, Daman
3rd Floor, Adarshdham Building, Opp. Vapi
Town Police Station, Vapi-Daman Road,
Vapi - 396 191 ...Appellant
Versus
Alkem Laboratories Ltd.
167/2, Mahatma Gandhi Udyog Nagar,
Dabhel, Daman ...Respondent
Ms. P.S. Cardoza, with Ms. Riya Thakkar, for Appellant in
CEXA No. 154 of 2015.
Mr. Swapnil Bangur with Ms. Shalaka Gujjar for Appellant in
CEXA No. 210 of 2016, 211/2016 & 212/2016.
Mr. V. Sridharan, Senior Advocate, with Mr. Prakash Shah, for
Respondents in all the above matters.
CORAM: A.S. OKA AND
RIYAZ I. CHAGLA, JJ.
DATED: 7th August 2017 1/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC
O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. We are disposing of the Appeals by this common order as the parties and issues are the same. We are referring to the facts in Appeal No. 154 of 2015, wherein the impugned order of the Customs, Excise and Service Tax Appellate Tribunal ("CESTAT") dated 28th August 2014 has been challenged.
2. The Respondent is engaged in manufacturing of pharmaceutical products. A boiler was installed by the Respondent in the main unit for production of steam. The main unit was using Furnace Oil as fuel for production of steam in the boiler. The steam so produced is consumed captively by the main unit. The steam was also supplied by the Respondent to their adjoining sister concern, namely, M/s. Alkem Laboratories through pipelines. The main unit was taking CENVAT credit of duty on the entire quantity of furnace oil which is used as fuel for production of steam. The Respondent had been issued a show cause notice by the Appellant which had alleged that Respondents had 2/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC contravened the provisions of Rule 2(k) (i) of the CENVAT Credit Rules, 2004, by wrongly taking CENVAT credit amount of Rs.27,64,669/- during the period of November 2006 to May 2007 and failing to reverse the said CENVAT credit and thereby contravening provisions of Rule 14 of the said Rules. A demand-cum-show cause notice had called upon the Respondent to show cause why the acts of contravention should not make the Respondents liable for penal action under Rule 15 of the said Rules read with Section 11 (C) of the Central Excise Act, 1944. An order dated 29th November 2007 was passed by the Additional Commissioner, Central Excise, Customs, Daman confirming the duty demanded equivalent to the CENVAT credit attributable to the furnace oil used in the production of steam and supplied by the Respondent to its sister concern unit. Applicable interest and penalty was imposed and confirmed under the Rules. The Respondent filed Appeal before the Commissioner (Appeals), Daman. By an order dated 28th March 2008, the Commissioner (Appeals) Daman, rejected the Appeal. The Respondent being aggrieved by the order passed by the 3/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC Commissioner (Appeals) filed Appeal before CESTAT, CESTAT in the impugned order has held in paragraph 5 that :
"On perusal of the case records it is observed that this aspect of payment of duty by the sister concern, can be verified by the jurisdictional field formations and in case it is found that end products of the sister concern are cleared on payment of duty then the credit cannot be denied to the Appellant group of companies by simply on the grounds that procedures prescribed under Rule 4 of the CENVAT Credit Rules, 2004 are not followed as there is no allegation of diversion of inputs / steam for a consideration or sale.
CESTAT in view of the observations made in paragraph 5 has remanded the Appeal to the adjudicating authority for necessary verification.
3. The Appellant has challenged the impugned order of CESTAT on the questions of law which are set out in paragraph 4 of the Appeal and reads thus:-
"Whether the CESTAT is right in law in holding that demand of amount for non- reversal of proportionate CENVAT Credit taken on inputs viz"furnace Oil" for generation of Steam and also passing the 4/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC same to outer unit / sister concern is not in accordance with the law?"
4. Ms. Cardoza, learned counsel for the Appellant has placed reliance upon Rule 2 (k) (i) of the CENVAT Credit Rules, 2004 ("the Rules") which read thus :
"all goods, except light diesel oil, high speed diesel oil and motorspirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production,"
5. Ms. Cardoza has contended that CESTAT ought to have dismissed the Appeal preferred by the Respondent on the ground that the Respondent had availed of CENVAT Credit despite the steam / inputs not being used within the registered factory of production. Ms. Cardoza has submitted that the steam generated in the factory of the Respondent had been diverted to the sister concern and that the two factories were independent of each other and hence Rule 2 (k) (i) of the said Rules was not 5/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC application. Ms. Cardoza accordingly contended that the Respondent is not eligible for CENVAT Credit and this finding should have been arrived at by CESTAT instead of remanding the matter back to the adjudicating authority.
6. Mr. Sridharan, learned senior counsel appearing for the Respondent has supported the impugned judgement of CESTAT.
7. We are of the considered view that the Appellant can in no way be aggrieved by the impugned order of CESTAT since CESTAT has merely remanded the matter back upon the contention of the revenue that it was not known whether the sister concern of the Respondent had cleared the final product in which steam was generated on payment of duty or not. CESTAT has directed verification of the payment of duty by the sister concern by the adjudicating authority and only upon verification, it would be determined whether the end products of the sister concern are cleared on payment of duty and if that is answered in the affirmative, then CENVAT credit cannot be denied to the Respondent. Hence, we are not 6/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 ::: 14-CEXA-154-2015.DOC inclined to admit the Appeal on the above questions of law. The Appeal is accordingly dismissed.
8. In the light of the above reasons, Appeal Nos. 154 of 2015, 210 of 2016 and 211 of 2016 and 212 of 2016, containing identical challenges to the respective impugned orders are also dismissed. There shall be no order as to costs.
( RIYAZ I. CHAGLA J. ) ( A.S. OKA, J. ) 7/7 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 00:33:32 :::