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Lakshmi Machine Works Ltd. V/S GST, CCE, Coimbatore


Company & Directors' Information:- LAKSHMI MACHINE WORKS LIMITED [Active] CIN = L29269TZ1962PLC000463

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

    E/42586 - 42587/2017 (Arising out of Order-in-Appeal No. 216/2017 dated 08.09.2017 passed by the Commissioner of CGST & CCE (Appeals), Coimbatore) and Final Order Nos. 41557-41558/2018

    Decided On, 15 May 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: P. DINESHA
    By, MEMBER

    For Petitioner: A.R. Sreenivasan, Manager And For Respondents: R. Subramaniyam, AC (AR)



Judgment Text


1. The appellant is a holder of Central Excise Registration No. AAACL5244NXM003 for the manufacture of CNC Lathes, Machining Centre and their parts classified under Chapter Sub-heading Nos. 8457, 8458 and 8466 respectively of the schedule to the CETA, 1985. It is the case of the Revenue that during the course of audit of books of accounts of the appellants, the officers of the audit wherein noticed that in addition to its main activity of manufacture of dutiable goods, the appellant was also doing trading activity from its factory premises and it was found to be selling raw materials like furan resins, furring sheets, separate coat etc., purchased from other units and cleared to its customers after reversing the credit of duty availed. It was the further case of the Revenue that they further noticed that the appellant was availing credit on the input services such as security services, manpower supply services, courier services etc., which were used for both the manufacturing activity as well as trading of goods (exempted services) which according to the department were consumed by the appellants to carry out their duty of manufacture of dutiable goods and also for trading activity which was exempted service. A SCN dated 16.03.2016 was therefore came to be issued on the ground that the appellant was not eligible to avail and utilize the credit in respect of that part of input services consumed for the exempted activity namely trading of goods. It was therefore proposed in the SCN as to why:

i) The extended period should not be invoked under Rule 14 of CCR read with Section 11A(4)/11A(5) of CEA, 1944

ii) An amount of Rs. 7,49,449/- being the amount equivalent to the specified percentage of the value of clearances of exempted goods during the period from 2011-12 to 2014-15 should not be demanded from them under Rule 14 of CCR read with Section 11A(4)/11A(5) of CEA.

iii) the interest as applicable for the delayed payment of the amount mentioned in Sl. No. (ii) above should not be demanded from them under the provisions of Rule 14 of the CCR read with Rule 6(3A)(e) of CCR and Section 11AA of CEA.

iv) A penalty under Rule 15(2) of CCR read with Section 11AC of CEA, should not be imposed on them for the said contravention.

2. The appellant filed its detailed reply vide its letter dated 16.04.2016 and it was in the case of the assessee, in nutshell, that they did not have a Trader licence or registration to involve in trading of goods and that they were involved in manufacturing activity alone. Further, they were clearing some inputs as spare parts to their customers and some of the inputs were cleared for further manufacturing to its vendors mainly to the job workers on payment of duty which would be returned to its factory for further manufacturing of final dutiable products. The assessee by referring to Rule 3(5) of CCR, 2004, pleaded before the adjudicating authority that the interpretation sought to be adopted by the Revenue as trading activity was not justified. The adjudicating authority vide his order dated 26.12.2016 passed the OIO wherein he has proceeded to demand duty along with appropriate interest and penalty as proposed in the SCN. On appeal, the Ld. Commissioner (Appeals) has dismissed the appeal by upholding the order of the adjudicating authority. Seriously aggrieved by the same, the appellant is now before this forum.

3. Heard both the parties and perused the records.

4.1 On behalf of the appellant, Shri A.R. Sreenivasan, Manager appeared and seriously contended that the lower authorities had clearly mis-understood the facts vis-a-vis the requirements of law. It is no doubt true that the appellant did some trading activity but the same was to an extent of a mere 1%, that too which is supplied to its job workers for processing the products. During the course of hearing, he also relied on the orders of this Court in the case of Sister concern of the appellant, in the case of Lakshmi Ring Travellers (Cbe) Ltd. in Final Order No. 42443/2017 dated 27.10.2017, wherein on identical facts this Court has held as under:-

"5. It is brought out from the facts that the appellant has reversed the credit when the inputs are removed as such from the factory. The department has taken the view that such removal amounts to trading and has directed the appellant to expunge the credit to the extent of the value of inputs removed by them. In fact, such removal of inputs from one factory to the sister unit under the excise law by reversing the credit cannot be considered as a trading activity requiring the appellant to reverse the CENVAT credit availed on input services. I find that the issue of show cause notice as well as the confirmation of demand is without any legal basis. The impugned order is set aside and the appeal is allowed with consequential relief, if any."
4.2 The assessee also placed reliance on the order of CESTAT's Principal Bench, New Delhi and CESTAT, Regional Bench, Allahabad in the cases of CCE, Ghaziabad Vs. UP Telelinks : 2015 (329) ELT 888 (Tri.-Delhi) and CCE, Ghaziabad Vs. Mahaveer Cylinders Ltd : 2016 (341) ELT 361 (Tri.-All.).

5. Per contra, the Ld. AR, Shri R. Subramaniyam, AC, vehemently contended that the appellant was carrying on trading activity and he also has relied on the findings of the lower authorities in his support.

6. Heard both the parties and perused the facts on record.

7. I find that the department has not disputed the fact that the appellant had removed the inputs as such to its sister conce

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rn by reversing the credit availed on such inputs as per Rule 3(5) of CCR, 2004. And this by itself, as held by this Court in the case supra is not sufficient to hold that it is a trading activity. This is also supported by the orders of Tribunal in Lakshmi Ring Travellers (Cbe) Ltd., UP Telelinks and Mahaveer Cylinders Ltd. (supra), relied on by the representative of the appellant. 8. I am therefore of the view that in the light of above observations and judicial pronouncements, the adjudicating authority shall examine the documents if any furnished by the appellant and pass order, in line with case law supra.
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