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M/s. SRF Ltd., Manali v/s The Commissioner of G.S.T. & Central Excise, Chennai North Commissionerate


Company & Directors' Information:- SRF LIMITED [Active] CIN = L18101DL1970PLC005197

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

    Appeal No. E/41989 of 2018 in-Appeal No. 252 of 2018 & Final Order No. 42788 of 2018

    Decided On, 09 November 2018

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

    By, THE HONOURABLE MS. C.S. SULEKHA BEEVI JUDICIAL MEMBER

    For the Appellant: S. Bharkavi, Advocate. For the Respondent: K. Veerabhadra Reddy, ADC (AR).



Judgment Text

1. Brief facts are that the appellants are engaged in the manufacture of Nylon Yarn and Nylon Tire Cord fabrics.

1.2 On verification of CENVAT Accounts, it was noticed that appellants had availed Credit on inputs and capital goods used in their Research and Development (R&D) unit during the period 2007-08 and 2008-09. The Department was of the view that such credit is not eligible as inputs or capital goods used for R&D purposes does not fall within the definition provided in the CENVAT Credit Rules (CCR), 2004.

1.3 A Show Cause Notice was issued proposing to recover the Credit of Rs. 21,70,738/- along with interest and for imposing penalties. After due process of law, the Original Authority confirmed the demand, interest and imposed penalties. In appeal, the Commissioner (Appeals) upheld the same. Hence, this appeal.

2.1 On behalf of the appellant, Ld. Counsel Ms. S. Bharkavi submitted that the R&D Division is situated within the factory premises itself and that the capital goods as well as the inputs were used for activities relating to the process of manufacture; that R&D activities are integral part of the manufacturing activity carried out by the appellant within the factory and therefore, is eligible for Credit.

2.2 She adverted to the definition of 'inputs' contained in the CENVAT Credit Rules and submitted that the definition is wide in nature so as to include all goods that are used within the factory. In regard to the definition of 'capital goods', she submitted that the capital goods are installed in the R&D Division and are used for activities of quality testing and Research and Development of the finished products and therefore, being integral part of the manufacturing activity, are eligible for credit.

2.3 It is argued by her that the Tribunal in the case of M/s. Sudarshan Chemicals Inds. Ltd. Vs. Commissioner of C. Ex., Pune-III – 2010 (262) E.L.T. 974 (Tri. – Mum.) had analyzed a similar issue and held that the inputs and capital goods used for R&D purposes were eligible for credit. So also that the Tribunal in the case of M/s. Orchid Health Care Vs. Commissioner of C. Ex., Chennai-IV & vice versa vide Final Order Nos. 40337-40338/2018 dated 19.01.2018 had also held the issue in favour of the assessee.

3. Ld. AR Shri. K. Veerabhadra Reddy supported the findings in the impugned Order. He submitted that as per the definition of 'capital goods', only those capital goods which are within the factory and are used in relation to manufacturing activity are eligible for Credit. The capital goods installed in the R&D Division are not used for manufacturing of finished products and therefore, are not eligible for Credit.

4. Heard both sides.

5. The case of the Department is that since the capital goods installed in the R&D Division are not used for manufacture of finished products, they are not eligible for Credit. Needless to say that the R&D Division is an integral part of the factory wherein the quality testing and other activities for improving the products takes place. It is usual that every manufacturing factory has a R&D Division wherein the Research and Development of the finished products as well as the process of manufacture is undertaken. This being the situation, I am of the view that the capital goods installed in the R&D Division are used in relation to the activity of manufacture and therefore, eligible for Credit. Further, it is also pointed out by the Ld. Counsel for the appellant that the R&D Division is located within their factory premises.

6.1 With regard to the issue of disallowance of Credit on inputs it can be seen from the definition of inputs that the goods brought within the factory used for any purpose would be eligible for Credit. Thus, the definition of inputs has a wide ambit so as to cover all goods which have been brought into the factory. The Counsel for appellant has relied upon the decision in the case of M/s. Sudarshan Chemicals Inds. Ltd. (supra). The relevant portion which is noteworthy is reproduced as under :

'9. After careful examination of the facts of the case, I find that the manufacturing activity of the appellant is as such that the input procured by the appellant is first to be tested and then they have to be taken into the manufacturing process. Moreover, if some variations found with regard to the quality of input, it is to be retested as per required composition. In that situation, the manufacturing activity explained by the learned Advocate in the facts and circumstances in this case, the testing in the R&D Section is being done for manufacturing of final product. If these tests have not been taken over by the appellant at the various stages the final product will not be produced. In that situation, I find that in this case the testing done in R & D section as stated by the appellant is an integral part of the manufacture of final product. The case cited by the learned Advocate and the arguments of the learned DR both are of the view that if any input which is being used in or in relation to the manufacture of final product are entitled for CENVAT credit. In this case these tests are required to manufacture the final product. Accordingly, the appellants are entitled for CENVAT credit availed on such inputs which went for testing and analysis to manufacture the final product. The CENVAT credit on capital goods used in R & D section is also entitled as the same has been used in or in relation to the manufacture of the final product.'

6.2 So also, this Tribunal in the case of M/s. Orchid Health Care (supra) had occasion to analyze a similar issue and held as under :

'5.1 The undisputed facts of the case are that the raw materials, capital goods imported and locally procured by availing exemption under the Notification No. 52/2003 and Notification No.22/2003 have been used substantially for R&D process by the appellants. It is also not disputed that the department was aware of the existence of R&D Section inside the manufacturing premises of the appellants. The only point that arises for consideratin is that whether the inputs and capital goods used in R&D is eligible for exemption from duty and whether the input services used in R&D is eligible for Cenvat credit. The ground on which the department proposes to deny the benefit is that R&D activities are not part of manufacturing process. Thus, it is alleged that the products developed at R&D Centre are either exported or sold in DTA. The relevant portion of the SCN is reproduced as under for better appreciation:-

'7. Whereas it appears that M/s. OHC-EOU have imported/locally procured raw materials and capital goods and have installed in R&D Centre and used the same in R&D Centre as well as availed service tax credit on the services rendered to R&D Centre. The products and process developed at R&D Centre is for the purpose of filing ANDAs and to increase the yield of the existing process and also for development of new products. The products developed at R&D Centre are neither exported nor sold in DTA. The said imported/locally procured raw materials and capital goods installed and used in the R&D Centre as well as services rendered to R&D Centre cannot be said to be used in connection with the production or packing of goods for export. Consequently, it appears that the aforesaid goods are not eligible to be imported without payment of duty under Notification No. 52/2003-Cus., dated 31.03.2003 as well as goods procured locally without payment of duty under Notification No. 22/2003-CE dated 31.03.2003 and they are also not eligible vis-avis service tax input credit on the services rendered to R&D Centre.'

5.2 The appellants have explained in detail how the R&D activities are linked to the process of manufacture. We find that after the R&D process the samples of the final products undergo test and then are manufactured and exported by the appellants. It is very much clear that the R&D activities are directly linked to the process of manufacture of the final products of the appellants. The appellants being a 100% EOU, the finished products are exported. Therefore, the availment of concession of duty on inputs and capital goods and Cenvat credit on input services in our view is fully in order. A similar issue was discussed by the Tribunal in the case of Dr. Reddy Laboratories Ltd. (supra), where the Tribunal observed as under:-

' 3. After hearing both sides and perusal of the records, we find that the adjudicating Commissioner has considered all aspects of the case and has passed a detailed speaking order. He has also taken note of the fact that for manufacturing and exporting pharmaceutical products certain amount of research and development is required for meeting the stringent requirement of the Certification Authorities in the export market before the goods can be actually exported. He has also taken into account the fact that the respondents have fulfilled the export obligation and achieved net NFEP. He has gone by the parameters of the Exim Policy in regard to broad-bonding as also treatment of waste and scrap and rejects involved in the manufacture, of exports goods.'

5.3 The Co-ordinate Bench of the Tribunal in Serum Institute of India Ltd. (supra) had occasion to analyze a similar issue. The relevant portion is reproduced as under:-

' 5. The contention of the appellant is that the appellants are manufacturing vaccines and for the manufacture of vaccines, a regular research and development is required. In these circumstances, the some inputs which were received without payment of duty, which are required for the manufacture of export goods are consumed to carry out the research and development for the improvement of products. Without the research and development, the manufacturing process cannot be undertaken and completed properly. The appellants relied upon the decision of the Tribunal in the case of CCE, Hyderabad v. Dr. Reddy Laboratories Ltd. reported in 2010 (253) E.L.T. 316. The contention is that the Tribunal in a similar situation upheld the order passed by the lower authority whereby the confirmed demand on the same ground is set aside.

6. The Revenue relied upon the findings of the lower authority and submitted that as the raw material received without payment of duty is not used for the manufacture of final product hence the appellants are not entitled for the benefit of the Notifications.

7. We find that in the present case the appellants being a 100% EOU made import of certain raw material without payment of duty by availing the benefit of the above-mentioned Notifications. Part of the raw material is used for research and development activity which is essential for manufacture of human vaccines. The Tribunal in the case of Dr. Reddy Laboratories Ltd. (supra) rejected the contention of the Revenue that the manufacturer is liable to pay duty in respect of the raw mat

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erial obtained without payment of duty, which is used for research and development purposes. In the present case, we find that there is no allegation that the raw material which is procured without payment of duty is diverted or not used within the 100% EOU as the research and development facility is within the 100% EOU. In these circumstances and in view of the above decision of the Tribunal, we find merit in the contention of the appellant. The impugned order is set aside and the appeal is allowed.' 6. From the discussions made above and following the precedent decisions in the case of Dr. Reddy Laboratories Ltd. and Serum Institute of India Ltd., (supra), we are of the considered opinion that the demand cannot sustain. The impugned order is set aside. The appeal filed by the assessee is allowed and the appeal filed by the department is dismissed.' 7. On appreciating the facts as well as the relevant provisions of law on the issue, I am of the view that the Credit availed on the impugned inputs and capital goods is eligible. The impugned Order therefore cannot sustain and requires to be set aside, which I hereby do. 8. The appeal is allowed with consequential benefits, if any.
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