Nahar Industrial Enterprises Vs. Cce

Nahar Industrial Enterprises vs Cce

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Jun 21, 2006

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Citation: sooperkanoon.com/42928
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: S Kang, Vice-
Decided On: Jun 21, 2006
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Nahar Industrial Enterprises

Respondent

Cce

Excerpt

.....to pay duty at the rate of 8%, therefore, appellants are eligible to take credit only at the rate of 8% and not at the rate of 9.2%.2. the contention of the appellant is that the revenue is not objecting to payment of higher duty by their manufacturer and supplier of the inputs. the revenue is accepting 9.2% duty in respect of the inputs received by them. therefore, at the time of taking credit, the quantum of duty cannot be reduced on the ground that supplier of inputs are required to pay less duty. the appellant relied upon the decisions of the tribunal in the case of jayaswals neco ltd. v. cce, raipur reported in 2005 (191) e.l.t. 519 and in the case of parasrampuria synthetics ltd. v. cce, jaipur reported in 2005 (191) e.l.t. 899. the contention is that the tribunal held that cenvat credit taken on the basis of specified duty paid by the manufacturer cannot be denied on the ground that supplier of the inputs paid higher duty.3. the contention of the revenue is that as the goods are liable to pay duty at the rate of 8% and the manufacturer has paid the duty in excess just to pass on the higher amount of credit, therefore, appellants are not entitled for the excess credit.4. revenue is not disputing the fact that they are not raising any objection when the goods are cleared on payment of duty at the rate of 9.2% by the supplier. the revenue is accepting the duty without any objection. the appellants are taking the credit of the duty paid by the supplier of the goods. the tribunal in the decisions relied upon by the appellant specifically held that when revenue is not disputing the payment of duty at the ends of manufacturer, the objection cannot be raised while taking credit of duty by the manufacturer who is using these goods as inputs in the manufacture of dutiable goods. in the present case as revenue is not objecting to the payment of duty at the rate of 9.2% at the time of clearance of goods, therefore, in view of the above decisions of the tribunal,.....

Full Judgment

1. Heard both sides. The appellant filed this appeal against the order-in-appeal passed by the Commissioner (Appeals). In this case the benefit of Cenvat credit was denied to the appellant on the ground that the supplier of the inputs are liable to pay duty at the time of clearance of the input at the rate of 8% whereas supplier has paid duty at the rate of 9.2% and the appellant availed the credit on the duty paid by the supplier. As the supplier of the inputs are liable to pay duty at the rate of 8%, therefore, appellants are eligible to take credit only at the rate of 8% and not at the rate of 9.2%.

2. The contention of the appellant is that the revenue is not objecting to payment of higher duty by their manufacturer and supplier of the inputs. The revenue is accepting 9.2% duty in respect of the inputs received by them. Therefore, at the time of taking credit, the quantum of duty cannot be reduced on the ground that supplier of inputs are required to pay less duty. The appellant relied upon the decisions of the Tribunal in the case of jayaswals Neco Ltd. v. CCE, Raipur reported in 2005 (191) E.L.T. 519 and in the case of Parasrampuria Synthetics Ltd. v. CCE, Jaipur reported in 2005 (191) E.L.T. 899. The contention is that the Tribunal held that Cenvat credit taken on the basis of specified duty paid by the manufacturer cannot be denied on the ground that supplier of the inputs paid higher duty.

3. The contention of the revenue is that as the goods are liable to pay duty at the rate of 8% and the manufacturer has paid the duty in excess just to pass on the higher amount of credit, therefore, appellants are not entitled for the excess credit.

4. Revenue is not disputing the fact that they are not raising any objection when the goods are cleared on payment of duty at the rate of 9.2% by the supplier. The revenue is accepting the duty without any objection. The appellants are taking the credit of the duty paid by the supplier of the goods. The Tribunal in the decisions relied upon by the appellant specifically held that when revenue is not disputing the payment of duty at the ends of manufacturer, the objection cannot be raised while taking credit of duty by the manufacturer who is using these goods as inputs in the manufacture of dutiable goods. In the present case as revenue is not objecting to the payment of duty at the rate of 9.2% at the time of clearance of goods, therefore, in view of the above decisions of the Tribunal, the credit cannot be restricted to 8% at the end of the appellant who are re-cepient of the inputs. In view of the above discussions, the impugned order is set aside and the appeal is allowed.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Nahar Industrial Enterprises vs Cce Same Subject Service Tax Same Judge S Kang, Vice-