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In recently case in High Court
the Revenue had filed an appeal against M/s Nestle India bearing
wherein a Division Bench of Tribunal vide its judgment dated
February 3, 2009, has allowed cenvat credit on the residuary fuel used for the
manufacture of dutiable goods and answered the question against the Revenue.
Revenue has argued that show cause notice to the respondent was issued for
having claimed modvat credit on the exempted final goods. He has placed reliance
on Commissioner of C.Ex. vs. Gujarat Narmada Fertilizers Co. Ltd., reported as
2009(240) E.L.T. 661 (S.C.) to submit that where a manufacturer avails of modvat
credit on fuel which is used in the manufacturing of non- exciseable final
product, then no modvat credit can be availed by the manufacturer. Respondent
has submitted that a perusal of the order of the adjudicating authority does not
make any mention as to which non-exciseable product is being manufactured by the
respondent. He further submits that the respondent is not manufacturing any
non-excisable goods and hence the judgement rendered by the Apex Court in
Gujarat Narmada Fertilizers Co. Ltd. (supra) is not applicable to the present
case, because in that case final goods being manufactured by the respondent were
non-excisable.
The HIgh Court held that there is
no mention of any particular goods being manufactured by the respondent which is
non-exciseable. The respondent has availed of modvat credit on residuary furnace
oil which is used for generation of steam in the manufacture of exciseable
products. There is no material on record on the basis which it can be held that
the respondent has claimed modvat credit on non-exciseable final product or on
the exempted finished goods. This fact was required to be adjudicated upon
specifically by the Assistant Commissioner.
The link for full text of the
case law :-
2010-ITS-094-HC-COMMISSIONER, CENTRAL EXCISE P-17,
...APPELLANT SECTOR 1, ROHTAK (HARYANA). -VERSUS- M/S NESTLE (INDIA) LTD. PATI
KALYANA ...RESPONDENT , DATE OF DECISION: January 18, 2010
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