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M/s. Themis Medicare Ltd. v/s C.C.E. & S.T. Daman

Company & Directors' Information:- THEMIS MEDICARE LIMITED [Active] CIN = L24110GJ1969PLC001590

Company & Directors' Information:- D. S. MEDICARE PRIVATE LIMITED [Active] CIN = U85100WB2008PTC129181

Company & Directors' Information:- K K MEDICARE PRIVATE LIMITED [Active] CIN = U85310CH1998PTC021033

Company & Directors' Information:- MEDICARE INDIA PRIVATE LIMITED [Amalgamated] CIN = U99999TG1986PTC006690

Company & Directors' Information:- K D MEDICARE PRIVATE LIMITED [Active] CIN = U85110DL2000PTC107059

Company & Directors' Information:- A & A MEDICARE PRIVATE LIMITED [Active] CIN = U85190WB2009PTC140435

Company & Directors' Information:- V G S MEDICARE INDIA PRIVATE LIMITED [Strike Off] CIN = U24231TN1988PTC015301

Company & Directors' Information:- I AND P MEDICARE LIMITED [Strike Off] CIN = U85110DL1993PLC052226

Company & Directors' Information:- S. J. MEDICARE PRIVATE LIMITED [Active] CIN = U85110GJ2011PTC065287

Company & Directors' Information:- S B MEDICARE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC047778

Company & Directors' Information:- R. S. MEDICARE PRIVATE LIMITED [Active] CIN = U85110PB2008PTC032129

Company & Directors' Information:- G B MEDICARE PRIVATE LIMITED [Strike Off] CIN = U24232PB2011PTC034562

Company & Directors' Information:- S S MEDICARE PRIVATE LIMITED [Active] CIN = U85110DL2002PTC115168

Company & Directors' Information:- I M MEDICARE PRIVATE LIMITED [Strike Off] CIN = U74999DL2004PTC131201

Company & Directors' Information:- J S MEDICARE PRIVATE LIMITED [Strike Off] CIN = U85110MP2009PTC022054

Company & Directors' Information:- S. A. K. MEDICARE PRIVATE LIMITED [Active] CIN = U24230HR2019PTC081503

Company & Directors' Information:- I. C. MEDICARE PRIVATE LIMITED [Active] CIN = U24232DL2008PTC177588

Company & Directors' Information:- M M MEDICARE PRIVATE LIMITED [Active] CIN = U85110OR2005PTC008481

Company & Directors' Information:- MEDICARE PVT LTD [Strike Off] CIN = U22121AS1982PTC001957

Company & Directors' Information:- P & P MEDICARE PRIVATE LIMITED [Active] CIN = U74999MH2011PTC224186

Company & Directors' Information:- S P G MEDICARE PRIVATE LIMITED [Active] CIN = U24231DL2001PTC113231

Company & Directors' Information:- D. V. MEDICARE PRIVATE LIMITED [Active] CIN = U51909DL2017PTC327336

Company & Directors' Information:- S G MEDICARE PRIVATE LIMITED [Active] CIN = U74999DL2010PTC202423

Company & Directors' Information:- M R MEDICARE PRIVATE LIMITED [Strike Off] CIN = U85120DL2010PTC206224

Company & Directors' Information:- R. C. MEDICARE PRIVATE LIMITED [Strike Off] CIN = U24232GJ2007PTC051001

    Appeal No. E/740 of 2012-SM Arising Out of:OIA No. CS/03/DMN/Vapi-I/2012-13, dt. 03.05.2012

    Decided On, 10 January 2014

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad


    For the Appellant: Vinay Kansara, Advocate. For the Respondent: J. Nair (A.R.).

Judgment Text

M.V. Ravindran, J.

1. This appeal is directed against OIA No. CS/03/DMN/Vapi-I/2012-13, dt. 03.05.2012.

2. The brief facts of the case are that a fire / explosion occurred in the factory premises of the appellant and certain materials under process were destroyed due to such fire / explosion. The revenue authorities after following the due process issued a show cause notice proposing to recover Cenvat Credit availed on inputs which were utilized in the manufacturing of the under process finished goods destroyed in fire / explosion and also proposed to demand, interest and imposed penalty. Adjudicating authority confirmed demands alongwith interest and also imposed penalty. Aggrieved by such an order, appellant preferred an appeal to the first appellate authority. The first appellate authority did not agree with the contentions raised by the appellant and upheld the Order in Original solely on the ground that the appellant were compensated by the insurance company for a value which was much more, would indicate that they were compensated for Cenvat Credit involved in such inputs. He also held that no evidence was presented by the appellant to show that they had not claimed the amount of Cenvat Credit from the insurance company.

3. Ld. Counsel submits that the show cause notice which was issued to the appellant was invoking the provisions of Rule 3(5C) of the Cenvat Credit Rules, 2004 seeking to reverse the Cenvat Credit availed on the inputs which were consumed in the manufacturing of goods which were destroyed even before they could reach the final stage. After reading the provisions of Rule 3(5C) of the Cenvat Credit Rules, 2004, he would submit that this rule will not be applicable in the case in hand. As regards the findings recorded by the first appellate authority as to appellant being compensated by the insurance company for the amount of duty liability on the inputs, he would submit that Hon’ble High Court of Karnataka in the case of Commissioner of C. Ex., Bangalore Vs. Tata Advanced Materials Ltd. 2011 (271) E.L.T. 62 (Kar.) has specifically held it cannot render credit claimed by assessee as irregular. He produces the copy of the said judgment.

4. Ld. Departmental Representative would take me through the entire show cause notice and submits that the invocation of provisions of Rule 3(5C) is correct and the goods which were destroyed in fire / explosion were the finished goods or goods which are in process, hence, the appellant having not paid the duty on such goods, his duty bound to reverse the amount of Cenvat Credit on the inputs which were consumed.

5. I have considered the submissions made at length by both sides and perused the records.

6. On perusal of the records, it transpires that the appellant herein had availed the Cenvat Credit on the inputs which were consumed for the manufacturing of final products. Before the final products could emerge, during the process, due to unfortunate fire / explosion, the goods got destroyed. It is also undisputed that the appellant had insured the premises and the stocks including the work in process stock with insurance agencies and had received the insurance claim lodged by him.

7. On the background of such a factual matrix, it needs to be considered whether a denial of Cenvat Credit to the appellant on the inputs consumed during the course of manufacturing and got destroyed before reaching the stage of finished goods is liable to be recovered.On perusal of the provisions of Rule 3(5C) of the Cenvat Credit Rules, 2004, it is seen that the said rule envisages recovery of duty paid on inputs and availed as Cenvat Credit when as assessee seeks remission of duty under Rule 21 of the Central Excise Rules, 2002. In my considered view, the said Rule 3(5C) of the Cenvat Credit Rules, 2004, can be invoked as and when the assessee seeks remission of duty, which is not the case in hand. In the case in hand, there was no application filed by the appellant for remission of duty quite rightly so as the goods which were destroyed were semi-finished products or work in process and have not attained the stage of finished goods.

8. This takes me to the second ground of rejection of the appeal by the first appellate authority which is that the appellant had been compensated by the insurance agencies even for the duty paid on inputs. I find that this reasoning which has been given by the Ld. first appellate authority seems to be at variance of the law as has been settled by the Hon’ble High Court of Karnataka in the case of Tata Advanced Materials Ltd. (supra), wherein in paragraph No. 6 their Lordships has recorded as under:

6. Therefore, it is clear that there is no provision in the rules which provides for a reversal of the credit by the Excise Authorities except where it has been irregularly taken in which event it stands cancelled or if utilised has to be paid for. This is not the case of the revenue. In the instant case, when the assessee purchased the capital goods and when he has paid the excise duty on them, in law, he is entitled to get the credit on the duty paid while clearing the finished products from his factory. Accordingly, he utilised the cenvat credit and cleared the finished products. It is about three years after such payment, the capital goods were destroyed in fire. As the assessee had insured the said capital goods, he put forth a claim for payment of the loss sustained by him, which includes the payment of excise duty. The Insurance Company in terms of the policy has compensated the assessee. Merely because the Insurance Company paid the assessee the value of goods including the excise duty paid, that would not render the availment of the cenvat credit wrong or irregular. At the same time, it does not confer any sight, on the Excise Department to demand reversal of credit or default to pay the said amount. The assessee has paid the premium and covered the risk of this capital goods and when the goods were destroyed in terms of the insurance policy, the Insurance Company has compensated the assessee. I

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t is not a case of double payment as contended by the department. At any rate, the Excise Department has no say in the instant case as held by the Apex Court. In that view of the matter, the substantial questions of law framed in this appeal are answered in favour of the assessee and against the revenue. Accordingly, the appeal is dismissed. 9. It can be seen from the above reproduced ratio that the issue is now squarely covered by the judgment of the Hon’ble High Court of Karnataka. 10. In view of the foregoing, I find that the impugned order is liable to be set aside and I do so. The impugned order is set aside and the appeal is allowed.