w w w . L a w y e r S e r v i c e s . i n



Brindawan Beverages Pvt. Ltd v/s Commissioner of C. Ex.


Company & Directors' Information:- P V BEVERAGES PRIVATE LIMITED [Active] CIN = U74899DL2005PTC141738

Company & Directors' Information:- B B BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U26103KA2000PTC026211

Company & Directors' Information:- O' BEVERAGES PRIVATE LIMITED [Active] CIN = U15492MH2015PTC265585

    Central Excise Appeal No. 75 of 2010

    Decided On, 24 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE MAHESH CHANDRA TRIPATHI & THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN

    For the Appellant: A.P. Mathur, Pramod B. Agarwal, Advocates. For the Respondent: S.P. Kesharwani, Advocate.



Judgment Text

1. Heard Sri A.P. Mathur, learned counsel for the appellant and Sri Shailendra Jaiswal, Advocate holding brief of Sri Vinod Kant, learned counsel for the respondent. This appeal u/s 35G of the Central Excise Act, 1944 has been filed against the judgment and order passed by the Customs, Excise & Service Tax Appellate Tribunal dated 1-5-2008 in Excise Appeal No. E/432/2007 [2008 (232) E.L.T. 475 (Tri.-Del.)].

2. The appeal has already been admitted vide order dated 8-3-2010 [2010 (256) E.L.T. A158 (All.)].

3. The facts of the case has been noted by the Tribunal in its judgment and order dated 1-5-2008 which needs no repetition except few facts as noted hereinbelow:--

The appellant has received capital goods during the period from September, 2004 to April, 2005 and have taken Cenvat credit of duty paid on the capital goods. The dispute relates only to one machine which was imported by the assessee which was used for manufacture of pulp based product, namely, 'Maaza' which is exempt from whole of the duty of excise. From October, 2006, the appellant also used the machine for dutiable goods.

A demand-cum-show cause notice dated 30-3-2006 was issued asking the appellant as to why demand should not be issued and recovery be made under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with the proviso to Section 11A of the Central Excise Act, 1944 and interest be not demanded as well as penalty. Show cause notice also mentioned that as to why extended period of 'five years' as provided under proviso to Section 11(A)(1) of Central Excise Act, 1944 should not be invoked as they have suppressed the facts as mentioned above and availed credit on duty of capital goods exclusively used in the manufacture of exempted goods. The Commissioner Central Excise vide order dated 15-11-2006 confirmed the demand directing for payment of interest as well as imposition of penalty for which judgment was appealed before the Tribunal. The Tribunal by the judgment dated 1-5-2008 affirmed the order of the Commissioner against which this appeal has been filed.

4. Sri A.P. Mathur, learned counsel for the appellant in support of the appeal submitted that the machine which was installed in the factory was capable of both manufacture of dutiable goods as well as exempted goods, hence Cenvat credit was rightly availed. He submits that the Tribunal committed error in taking the view that the appellant could not have taken the benefit since the machine was capable of being used for dutiable products only after modification. He submits that although a certificate dated 4-1-2007 from the manufacture was filed before the authorities but he submits that to make things clear the appellant now obtained another certificate dated 25-9-2009 which has been annexed along with supplementary affidavit in this appeal which clearly provides that no such modification can be done in India since machines are manufactured in Germany and imported in India. He submits that Tribunal mistook minor adjustment as minor modification, whereas the minor adjustment in machine is not any modification in the machine. He further submits that it is admitted fact that from October, 2006 the appellant has used machine for manufacture of dutiable goods, hence in the financial year in which the benefit was taken, to which machine was used, both for dutiable goods and exempted goods, permitting the appellant rightfully claim the benefit of Cenvat credit. He submits that credit can be denied as per Rule 6, sub-rule (4) of Cenvat Credit Rules, 2004 only when machine is exhaustively used for manufacturing of exempted goods.

5. Sri Shailendra Jaiswal, learned counsel appearing for the respondent submits that the certificate dated 25-9-2009 has been placed before this Court in this appeal and when the matter was heard by the Tribunal it had no benefit of the certificate. He submits that if reliance is being placed on the said certificate, the matter be remitted to the Tribunal for reconsideration.

6. We have heard learned counsel for the parties and perused the record.

7. Rule 6 of sub-rule (4) of Cenvat Credit Rules, 2004 which is relevant in the present case which provides as follows:--

4. No Cenvat credit shall be allowed on capital goods which are used exclusively in the manufacture of exempted goods or in providing exempted services, other than the final products which are exempt from the whole of the duty of excise leviable thereon under any notification where exemption is granted based upon the value or quantity of clearance made in a financial year.

In the present case, from the facts which emerges from the record, it is clear that the machine which was installed in the factory was used both for manufacture of exempted goods as well as dutiable goods. Dutiable goods were manufactured since October, 2006 which fact has been noted in Paragraph No. 8 of the judgment of the Tribunal. The Tribunal had denied the benefit on the pretext that "the certificate of the manufacturer relied upon by the appellant also confirms that the plant is usable for manufacture of aerated waters only after modification". The certificate which was relied upon by the appellant before the authorities dated 4-1-2007 was to the following effect as under:--

This is to confirm that the Krones PET line installed and operating at Bareilly at the fruit juice Maaza plant and the Filler VP-L-PET is designed to handle carbonated/aerated soft drinks. This is achieved by software changes and minor adjustments. Krones has supplied several similar equipment and fillers which are operating at various sites across the world.

The manufacture had certified that machine is designed to handle carbonated/aerated soft drinks by software changes and minor adjustments. The certificate never said that the object can be achieved only after modification. The certificate did not use the word 'modification' which has crept in the order of the Tribunal. More so, before us now the appellant has filed certificate dated 25-9-2009 which indicates that no modification in the machine can be done in India since it is manufactured at Germany and imported in India.

8. As submitted by learned counsel for the respondent, ends of justice would be served in setting aside the order of Tribunal dated 1-5-2008 remitting the matter back before the Tribunal for con

Please Login To View The Full Judgment!

sideration afresh. 9. Thus, the appeal is allowed by setting aside the judgment of the Tribunal dated 1-5-2008 and the matter is remitted back to the Tribunal to decide the appeal afresh in accordance with law taking into consideration the certificate dated 25-9-2009 which has been placed before us. 10. Learned counsel for the appellant has submitted that 25% of the total amount of duty amounting to Rs. 1,64,08,716/- directed by the Commissioner, Central Excise, Meerut while deciding stay-cum-waiver application is lying deposited with the department. In view of the above, when the appeal is revived before the Tribunal, no further recovery be initiated. The appeal be decided expeditiously.
O R







Judgements of Similar Parties

01-06-2020 Telangana State Southern Power Distribution Company Limited & Another Versus M/s. Srigdhaa Beverages Supreme Court of India
01-06-2020 M/s. Pt. Ved Prakash Beverages Versus Crystal Beverages High Court of Delhi
30-04-2020 Kerala State Beverages(Manufactoring & Marketing) Corporation Limited Versus Assistant Commissioner of Income Tax Circle-1 (I), Trivandrum High Court of Kerala
04-10-2019 Kerala State Beverages (M And M) Corporation Limited Versus P.P. Suresh & Others Supreme Court of India
01-07-2019 M/s. Overseas Trading Corporation (Partnership Firm) Versus Tata Global Beverages Ltd. (Formerly Know As Tata Tea Ltd.), New Delhi National Consumer Disputes Redressal Commission NCDRC
05-02-2019 Bihar State Beverages Corporation Ltd. & Others Versus Naresh Kumar Mishra & Others Supreme Court of India
05-07-2018 Hindustan Coca-Cola Beverages Pvt. Ltd V/S CCE, Jaipur Customs Excise Service Tax Appellate Tribunal New Delhi
29-06-2018 S. Vipin, Assistant Gr. I, Kerala State Beverages Corporation Ltd., Kollam & Others Versus State of Kerala, Represented by Secretary to Government, Department of Excise, Thiruvananthapuram & Others High Court of Kerala
25-06-2018 Hindusthan Cocacola Beverages Private Limited V/S Commissioner of Central Excise & Service Tax, Patna Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
09-01-2018 In the matter of: Hindustan Coca Cola Beverages Pvt.Ltd. Versus Raj Mohan Atrey Delhi State Consumer Disputes Redressal Commission New Delhi
21-12-2017 Rising India Food & Beverages Thr. Prop. Dr. R.L. Gupta & Another Versus State of U.P. Thr. Prin. Secy. Industry U.P. Civil Sectt. & Others High Court Of Judicature At Allahabad Lucknow Bench
06-10-2017 Deputy Commissioner of Income-Tax, Cir - 11(1), Kolkata Versus M/s. Bengal Beverages Pvt. Ltd. Income Tax Appellate Tribunal Kolkata
06-10-2017 Deputy Commissioner of Income-Tax, Cir - 11(1), Kolkata Versus M/s. Bengal Beverages Pvt. Ltd. Income Tax Appellate Tribunal Kolkata
18-09-2017 G.C. Beverages Ltd V/S Commr. of C. Ex. & Service Tax, Chandigarh Customs Excise Service Tax Appellate Tribunal Chandigarh Bench
11-09-2017 Hindustan Coca Cola Beverages Pvt. Ltd Versus Sonalben M. Dangar & Others High Court of Gujarat At Ahmedabad
31-07-2017 S.M.V. Beverages V/S Commissioner of Central Excise, Nagpur Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
24-03-2017 Hindustan Coca Cola Beverages P. Ltd V/S CCE, Chennai-IV Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
24-03-2017 M/s. Hindustan Coca Cola Beverages P. Ltd. Versus CCE, Chennai - IV Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
17-03-2017 SMV Beverages Pvt. Ltd. Sumit Halder Versus Commissioner of Central Excise, Nagpur Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
17-03-2017 SMV Beverages Pvt. Ltd V/S Commissioner of Central Excise Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
17-03-2017 A. Ravi Versus The Manager, Beverages Corporation Ltd., Puthoor, Koppam, Palakkad Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
07-03-2017 Tata Global Beverages Limited (Formerly known as Tata Tea Limited) Versus Tata Tea employees Union a trade Union & Another High Court of Judicature at Bombay
27-02-2017 Hindustan Coca Cola Beverages Pvt. Ltd V/S Commissioner of Central Excise, Thane-I Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
10-02-2017 Orissa State Beverages Corporation Ltd. Versus Regional Provident Fund Commissioner & Others High Court of Orissa
03-02-2017 IDBI Bank Limited V/S Divine Waters Food & Beverages and Others. Debts Recovery Tribunal Chandigarh
03-02-2017 Hindustan Coca Cola Beverages Pvt. Ltd V/S CCE, Jaipur-I Customs Excise Service Tax Appellate Tribunal New Delhi
24-01-2017 Maa Kamakhya Beverages Pvt. Ltd., Represented by its Director Ajay Poddar Versus State of Assam, Represented by its Secretary to the Govt. of Assam, Finance & Taxation Department & Others High Court of Gauhati
10-01-2017 Varun Beverages Ltd. Versus Arijit Sadhukhan & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
13-12-2016 Sanuja & Others Versus Kerala State Beverages Corporation Ltd., Represented by The Managing Director & Others High Court of Kerala
18-10-2016 Hindustan Coca-Cola Beverages Private Limited Versus Ramesh Prajapat & Another National Consumer Disputes Redressal Commission NCDRC
30-08-2016 Danone Narang Beverages Private Limited Versus State of Karnataka, Represented by the Inspector & Another High Court of Karnataka
20-05-2016 Hindustan Coca Cola Beverages Pvt. Ltd Versus Vishambar Dayal Mangal Modi Pada Wadi Dholpur Rajasthan & Another National Consumer Disputes Redressal Commission NCDRC
15-02-2016 Orissa State Beverages Corporation Limited Versus Regional Provident Fund Commissioner & Others High Court of Orissa
06-01-2016 Sapat International Pvt. Ltd. Versus Girnar Food and Beverages Pvt. Ltd. High Court of Judicature at Bombay
21-12-2015 The Managing Director, Kerala State Beverages Corporation Limited Versus P.P. Suresh & Others High Court of Kerala
14-08-2015 Tetra Pak India (P) Ltd. & Others Versus Tristar Beverages (P) Ltd. & Another High Court of Judicature at Bombay
30-06-2015 Varun Beverages Ltd., Earlier Varun Beverages (International) Ltd. Versus Abhay Shah Sole Proprietor M/s. Parshwanath Sales Corporation & Another In the High Court of Bombay at Goa
13-05-2015 M/s. Dhillon Cold Drinks & Beverages Ltd. Versus N.C.P.R.C. & Others National Consumer Disputes Redressal Commission NCDRC
10-03-2015 Commissioner of Central Excise Versus Hindustan Coca Cala Beverages Pvt. Ltd. In the High Court of Bombay at Goa
12-02-2015 The Kerala State Videsha Madhya Vyavasaya Thozhilali Union, represented by its General Secretary Versus The Kerala State Beverages (M&M) Corporation & Others High Court of Kerala
10-02-2015 Residency Food & Beverages Ltd. Versus Trade Tax Tribunal, Lucknow High Court of Judicature at Allahabad
12-01-2015 Raj Jacob Versus Ludhiana Beverages Private Limited & Others Union Territory Consumer Disputes Redressal Commission UT Chandigarh
19-12-2014 M/s. Boston Beverages Pvt. Ltd. Versus M/s. Kingston Beverages & Others High Court of Delhi
13-10-2014 M/s. South India Beverages Pvt. Ltd. Versus General Mills Marketing Inc. & Another High Court of Delhi
04-08-2014 M/S. Vishal Beverages Pvt. Ltd. Versus Union of India & Another High Court of Delhi
25-04-2014 Poornam Beverages (P) Ltd. Versus Commissioner of Central Excise, Coimbatore Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
09-01-2014 M/s Triputi Food and Beverages Versus State of Himachal Pradesh & Others High Court of Himachal Pradesh
01-01-2014 M/s. Hindusthan Coca-Cola Beverages Pvt.Ltd. Versus Commissioner of Central Excise & Service Tax, Patna Customs Excise Service Tax Appellate Tribunal East Regional Bench Kolkata
10-12-2013 Hindustan Coca-Cola Beverages Pvt.Ltd. Versus Vijay Narsingh Kulkarni & Another Maharshtra State Consumer Disputes Redressal Commission Aurangabad
29-08-2013 Hindustan Coca Cola Beverages Pvt. Ltd. Versus Kamlesh Kumar Parikh & Another National Consumer Disputes Redressal Commission NCDRC
13-08-2013 Hindustan Coca Cola Beverages Pvt. Ltd. Versus Commissioner of Central Excise (ST) Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
10-06-2013 V. Viswalal Versus Kerala State Beverages (Manufacuring & Marketing) Corporation Ltd, represented by its Managing Director & Others High Court of Kerala
31-05-2013 In Re: M/s. Official Beverages Versus M/s. SAB Miller India & Others Competition Commission of India
31-05-2013 M/s. Official Beverages Versus M/s. SAB Miller India, SKOL Breweries Limited & Others Competition Commission of India
01-03-2013 M/s. Nectar Beverages (P) Ltd., represented by the Manager, R.A. Bakale Versus S.P. Sadar Joshi, Partner High Court of Karnataka Circuit Bench At Dharwad
03-01-2013 A.M.P. Tejaswi Versus The Managing Director The Karnataka State Beverages Corporation Ltd. & Another High Court of Karnataka
02-01-2013 M/s. Hindustan Coco Cola Beverages P. Limited, Hyderabad Versus State of Andhra Pradesh, Rep. by its State Representative, Hyderabad & Another High Court of Andhra Pradesh
27-11-2012 M.M. Najeema & Others Versus Kerala State Beverages (M&M) Corporation & Another High Court of Kerala
16-11-2012 Canara Bank V/S M/s. S.K.S. Beverages & Others. Debt Recovery Appellate Tribunal At Delhi
13-11-2012 M/s Hindustan Coca-Cola Beverages (P) Ltd. Versus The Commissioner of Central Excise, Guntur Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
26-10-2012 Hindustan Coca Cola Beverages Pvt. Ltd. Versus C.C.E., Allahabad Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
04-10-2012 K. Dharmasiriwardena Versus Pure Beverages Company Ltd. Supreme Court of Sri Lanka
19-03-2012 Hindustan Cocacola Beverages Pvt. Ltd. Versus West Bengal Pollution Control Board & Others National Green Tribunal Principal Bench New Delhi
29-02-2012 Vijaya Bank & Another Versus Nector Beverages Pvt. Ltd. & Others National Consumer Disputes Redressal Commission NCDRC
09-02-2012 Moksha Foods & Beverages (P) Ltd. Versus State Of Kerala, Represented By Chief Secretary To Government Secretariat, Thiruvananthapuram High Court of Karnataka
09-01-2012 Union of India Versus Chhattisgarh Beverages Pvt Ltd High Court of Chattisgarh
11-11-2011 Aradhana Drinks & Beverages Pvt. Ltd. Versus State of Punjab & Others High Court of Punjab and Haryana
21-10-2011 Naresh Kumar Versus Dhillon Cool Drinks & Beverages Ltd. & Others National Consumer Disputes Redressal Commission NCDRC
31-08-2011 Kerala State Beverages (M & M)-Corporation Ltd. & Another Versus A. Venu & Others Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
01-08-2011 Messrs Elite Distilleries & Beverages Co. Rep. by its Proprietor T.R. Vijayakumar Versus State of Kerala, Rep. by its Secretary to Government, Revenue Department, Secretariat & Others High Court of Kerala
12-07-2011 Regional Provident Fund Commissioner, Tirunelveli Versus M/s. Prabha Beverages Private Ltd. & Others High Court of Judicature at Madras
07-06-2011 PAACK-IN-INDIA VERSUS VSR FOODS & BEVERAGES PVT. LTD. High Court of Judicature at Bombay
09-05-2011 Hindustan Coca Cola Beverages Pvt. Ltd. Versus S. Subbiyyan & Others Tamil Nadu State Consumer Disputes Redressal Commission Chennai
11-04-2011 Commissioner of Trade Tax, U.P. Versus Varun Beverages Limited Supreme Court of India
14-03-2011 Andhra Pradesh Beverages Corporation Ltd. Versus M/s. IBM Global Services India Ltd. High Court of Andhra Pradesh
14-01-2011 Commissioner Of Income Tax Iv Versus Hindustan Coca Cola Beverages Pvt. Ltd High Court of Delhi
08-12-2010 M/S. Aashirwad Foods And Beverages Versus Arunendra Mohan Pathak High Court of Madhya Pradesh
06-10-2010 The Commissioner of Income-Tax & Another Versus M/s. Brindavan Beverages (P) Ltd. High Court of Karnataka
02-07-2010 M/s Hindustan Coca Cola Beverages Pvt Ltd. Versus The Commissioner of Central Excise, Visakhapatnam Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
02-07-2010 The Commissioner of Central Excise Guntur Versus M/s Hindustan Coca Cola Beverages Pvt Ltd. Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
24-06-2010 P.M. Chordia Foods & Beverages Pvt. Ltd. Versus CCE, Aurangabad Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
06-05-2010 M/s. Hindustan Coca Cola Beverages (P) Ltd.Versus Commissioner of Central Excise, Meerut Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
30-04-2010 CCE, Hyderabad Versus M/s. Hindustan Coca-cola Beverages P. Ltd. Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
31-03-2010 Aishwarya Enterprises, A partnership firm represented By its partner Deepak M. Nayak Versus M/s Girnar Food and Beverages Pvt. Ltd. & Another Intellectual Property Appellate Board
24-03-2010 CCE, Madurai Versus M/s. Soft Beverages Pvt. Ltd. Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
22-02-2010 M/s. Colix Beverages Ltd. Versus CC, Chennai Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
18-01-2010 Hindustan Coca-Cola Beverages Pvt. Ltd Versus State of Jharkhand High Court of Jharkhand
08-01-2010 Moon Beverages Ltd. Versus Vinod Gupta & Others Delhi State Consumer Disputes Redressal Commission New Delhi
06-07-2009 Nectar Beverages Pvt. Ltd. Versus Deputy Commissioner of Income Tax Supreme Court of India
08-05-2009 Ramashankar Yadav Versus Godrej Beverages And Foodslimited High Court of Madhya Pradesh
08-05-2009 Godrej Beverages And Foods Ltd Versus Ramashankar Yadav High Court of Madhya Pradesh
01-05-2009 Orissa State Beverages Corporation Ltd. Versus Union of India & Others High Court of Orissa
01-05-2009 Brindavan Beverages Pvt. Ltd. Versus Commr.Of Central Excise, Meerut High Court of Delhi
04-10-2008 Hindustan Coca-cola Beverages Pvt. Ltd. Versus M.J. Biju & Another Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
03-07-2008 (M/s) S. Narendra Kumar and Co. Versus Everest Beverages & Foods Industries & Another High Court of Delhi
12-06-2008 M/s Hindustan Coca-Cola Beverages Ltd, Rep by its Authorized Signatory Versus The Government of Andhra Pradesh, rep by its Secretary, & Others High Court of Andhra Pradesh
30-05-2008 Punjab Beverages Pvt. Ltd V/S G.T. Agencies High Court of Punjab and Haryana
20-02-2008 P.V. BEVERAGES PVT. LTD. VERSUS GLOBAL BEVERAGES AG High Court of Delhi
14-08-2007 Pepsico Inc & Others Versus Sunrise Beverages High Court of Delhi
15-06-2007 Commissioner of Central Excise, Bangalore Versus M/s Brindavan Beverages (P) Ltd. & Others Supreme Court of India