IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1666 OF 1995
Atlas Automotive Components }
Private Limited and Anr. }
Union of India and Ors. }
Mr. Firoz Bharucha with Mr. Vijayendra
Purohit i/b. M/s. Manilal Kher and
Ambalal and Co. for the petitioners.
Mr. Swapnil Bangur with Mr. Shan V.
Walve for respondent nos. 2 and 3.
S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- DECEMBER 20, 2016
ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. By this writ petition under Article 226 of the Constitution of India, the petitioners seek the following reliefs:-
“a) that this Hon'ble court pleased to declare Rule 57C of the Central Excise Rules, 1944 unconstitutional and ultra vires Article 14 of the Constitution of India and/or Rule 57A of the Central Excise Rules, 1944;
b) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction calling for the papers pertaining to this case and after going into the question of legality and validity thereof to quash and set aside the Impugned order dated 28.12.1994 (Exhibit 'D' hereto);
c) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ order or direction, ordering and directing the Respondents, their officers, subordinates, servants and agents to forthwith withdraw the demand of duty amounting to Rs.29,88,435/-;
2. At the hearing of this writ petition, the petitioners' counsel does not press the relief in terms of prayer clause (a), by which, a declaration is sought to declare Rule 57C of the Central Excise Rules, 1944 as unconstitutional and ultra vires Article 14 of the Constitution of India and/or Rule 57A of the Central Excise Rules, 1944. This petition pertains to the old MODVAT, now CENVAT regime.
3. The writ petition is filed by a company, which is engaged in the business of manufacturing of castings of aluminium. The Assistant Collector of Central Excise and Customs, Pune Division respondent no. 3 to the writ petition, along with respondent no. 2- Collector of Central Excise and Customs (Appeals) have been impleaded on account of the demand raised against the petitioners, which stands confirmed.
4. It is stated that the product manufactured falls under Chapter 84 and 87 of the Schedule to the Central Excise Tariff Act, 1985. In manufacturing of castings, petitioner no. 1 uses aluminium ingots. The castings manufactured by petitioner no. 1 are in turn used in automobile industry. The buyers of castings manufactured by petitioner no. 1 include Eicher Tractors and Greaves Cotton and Company Limited, Aurangabad. The petitioners filed a declaration for availing credit of duty paid on the inputs, namely aluminium ingots as required under Rule 57G.
The petitioners claim that it maintains record for availing the credit of duty paid on inputs. The petitioner also states that the gate passes are issued and which would evidence that the castings are cleared on payment of duty by debiting the amount of credit of duty maintained in the register (RG-23A). The duty paid by the petitioners on castings is in turn available for taking credit by the consignee/buyer of the castings, who then utilises the same towards payment of duty of his final product. Instead of paying excise duty on castings, the buyer, who is going to use the same as an input, may decide to take the same on the basis of the certificate to utilise the same for further manufacture at his end for industrial process by following the provisions of Chapter X of the Rules. The buyer of castings, therefore, has the choice to either purchase the castings against the duty paying document and then in turn avail MODVAT Credit or instead of following the procedure of MODVAT Credit, obtain remission of duty under chapter X and purchase the castings without payment of duty.
On the other hand, as far as petitioner no. 1 is concerned, being the manufacturer of castings, at the time of receipt of inputs for manufacture of castings, it is not aware or cannot foresee which inputs shall be used in the manufacture of castings which the buyer decides/elects to purchase on payment of duty or on remission of duty sanctioned by the competent authority.
However, three show cause notices were issued by the third respondent, calling upon the petitioners to show cause why the credit of duty wrongly availed by petitioner no. 1 in respect of inputs used in the manufacture of castings cleared without payment of duty should not be recovered under Rule 57-I read with Section 11A of the Act. Annexures 'A', 'A1' and 'A2' are the copies of the notices. By letter dated 11th October, 1993, a reply was filed by the petitioners to these notices, but not being satisfied with the explanation, a demand came to be confirmed on 18th February, 1994. Thereafter, an appeal was preferred to the second respondent, who dismissed it on 28th December, 1994 relying upon an order passed by the tribunal in the case of Kirloskar Oil Engines Ltd. vs. Collector of Central Excise, Pune1.
5. The respondents to this writ petition have supported the impugned order.
6. The learned counsel appearing for the petitioners Mr.Bharucha would submit that Rule 57A and which was brought to the notice of the respondents, confers a substantive right to avail the credit of duty paid on inputs in or in relation to the manufacture and clearance of final product. Upon receipt of inputs, there are clearances of final product, on payment of duty.
The manufacturer acquires a vested right to take credit of duty paid on the inputs as against payment of duty on final products.
Such credit of duty can be utilised on clearance of other final product as Rule 57A does not levy any condition to utilise the credit of duty paid on inputs, only in respect of final product in which the corresponding input was used. Therefore, the buyer of castings instead of clearing the same upon payment of excise duty, apply for and seek remission of the excise duty, under Chapter X of the Rules, claiming that the petitioners' product is being used by the buyer in a specific industrial process. After inviting our attention to this Rule, it is submitted by Mr.Bharucha that the remission that the party or the buyer may claim is dependent upon satisfaction of the Collector/Commissioner of Customs. That does not follow as a matter of course. There are conditions, which have to be fulfilled and that is how Rule 192 of the Rules would read. Therefore, the stand of the respondents that since the duty on castings was remitted by virtue of Rule 57C, it was entitled to seek reversal of the MODVAT Credit is incorrect. The petitioners have denied their liability to make payment and/or provide re-credit. The petitioners contended that Rule 57C had no application to the facts of the case, since the duty was being remitted and not exempted or chargeable at nil rate. The petitioners rely upon the words “charged at nil rate of duty”. Hence, the show cause notices are ex-facie untenable and should be quashed and set aside.
7. Mr. Bharucha submits that there is no one to one co-relation of inputs to the final products contemplated under the MODVAT Scheme. Once there is vested right to seek credit of the duty paid on inputs as against clearance of dutiable final products, then, that right cannot be denied or taken away by an interpretative process. That right cannot be restricted by the factum of the inputs used in the manufacture of corresponding final product.
Once no one to one co-relation in the inputs of finished product is necessary, then, this right cannot be refused or denied. Precisely that has been done in the present case. Mr. Bharucha would submit that remission of duty on excisable goods could not be equated to either exemption or duty being chargeable at nil rate.
The product continues to remain dutiable, albeit, the duty is remitted. It is in these circumstances that he would question the conclusion in the impugned order.
8. Our attention has also been invited to the rules in question to submit that the respondents have not appreciated the facts in their proper perspective. The castings manufactured by the petitioners are neither exempted from excise duty nor are they chargeable to nil rate of duty. The expression “chargeable at nil rate of duty” means that as per the charging section of the Act read with the Schedule to the Central Excise Tariff Act, 1985, the goods are chargeable at nil rate of duty. The word “exemption” means the goods attract the duty, but are exempt by virtue of the power conferred in that behalf. It is in these circumstances and when neither eventualities are satisfied or attracted that the demand cannot be sustained. It is submitted that the difference as noted and highlighted above has been completely missed.
Hence, the impugned order be quashed and set aside.
9. Heavy reliance is placed on not only the rules, but the decision of a larger bench of the tribunal in the case of Kirloskar Oil Engines (supra), which, in turn, is based on the judgment of the Hon'ble Supreme Court of India in the case of Collector of Central Excise, Pune vs. Dai Ichi Karkaria Limited2. It is submitted that there is a decision of the High Court of Kerala in the case of Collector of Central Excise and Customs, Cochin Vs. Premier Tyres Limited3.
10. On the earlier occasion and when the arguments proceeded on these lines, we inquired from the learned counsel appearing for both sides as to whether the Revenue had preferred appeal against the larger bench order of the appellate tribunal in the case of Kirloskar Oil Engines (supra) or whether the Kerala High Court judgment settles the points or issues finally or that also is under challenge. Mr. Bangur appearing for the respondents would submit that this is a case covered by the conclusions of the respondents on facts. In the present case, the assessee was called upon to reverse the credit validly. Once the product, in relation to which the castings as input was chargeable to nil rate of duty, then, the reversal ought to follow. Else, this will be a benefit, which the the petitioners cannot earn in law. Therefore, relying upon the judgment in the case of Amrit Paper vs. Commissioner of Central Excise, Ludhiana4, it is submitted that the writ petition be dismissed.
11. For appreciating the above contentions, a reference to the show cause notices cum demand notices and the allegations therein is necessary. That notices allege that the petitioners are manufacturers of various aluminium castings used solely or principally with the machinery falling under Chapter Head Nos. 84, 85, 86, 87 and 90 of the Central Excise Tariff Act, 1985. It further appears that the assessees are availing MODVAT Credit on the inputs as provided in Rule 57A read with Rule 57G of the Central Excise Rules, 1955. The clearance has been made by the assessees after following the procedure under Chapter X of the rules. However, it was observed that the assessees have not reversed the MODVAT Credit for inputs used in the manufacture of these aluminium castings cleared under Chapter X procedure, chargeable to nil rate of duty from the month of August, 1992 to November, 1992. The assessees were, therefore, called upon to show cause as to why MODVAT Credit availed on these inputs should not be reversed. Since the assessees have availed the MODVAT Credit on inputs used in the manufacture of these aluminium castings cleared under Chapter X without payment of duty, contravention of Rule 57C of the Central Excise Rules, 1944 was alleged. The first show cause notice is dated 28th January, 1993. It provides all the details of the MODVAT Credit availed of. Then, there is a show cause notice, copy of which is at Annexure 'A-1' dated 24th May, 1993 with identical allegations, but for a distinct period, namely, from December, 1992 to April, 1993. Finally, there is another show cause notice, copy of which is at Annexure 'A-2' and with identical allegations, but for the period commencing from May, 1993 to September, 1993.
12. The reply to the show cause notice by the assessees was that they are not liable to reverse any MODVAT Credit of inputs gone into those final products, which were cleared under nil duty gate passes by following Chapter X procedure. The petitioners stated that estimation basis is the quantum of inputs which could have gone into the manufacture of the final product which were subsequently cleared under nil duty gate passes by following Chapter X procedure. However, in the month of August, 1992 they came across a tribunal decision in the case of Collector Vs. Premier Tyres Limited5, wherein, it was held that even though some portion of the inputs is used for manufacturing and clearing finished goods under various exemptions, it is not necessary to reverse back the proportionate MODVAT Credit, since there is no one to one co-relation. In view of this reported decision, the assessees-petitioners discontinued reversal of MODVAT Credit of inputs used for such purpose. This discontinuance was intimated to the office on 31st October, 1992. Thereafter, the reply contains the denials and the assumption based on the language of Rule 57A and the rules following that rule. A reference is also made to the rulings and various decisions of the tribunal or High Courts.
13. It is in this background that respondent no. 3, in his order on these show cause notices concluded that the assessees' stand is untenable. The assessees were reversing proportionate MODVAT Credit in respect of inputs used in castings cleared under Chapter X procedure initially. However, this was discontinued later. The Assistant Commissioner concluded that the assessee was fully aware that MODVAT Credit cannot be taken on final products which are either exempt from the whole of the duty of excise leviable or are chargeable to nil rate of duty. Rule 57C was relied upon. The Assistant Commissioner concluded that the petitioners have resorted to jugglery. They are claiming that neither are the goods exempt or chargeable to nil rate of duty, but there is remission of duty. The Assistant Commissioner found from the record that the goods, which are being cleared under Chapter X procedure have not suffered any duty payment. The MODVAT Credit taken on such goods is incorrect and has to be reversed.
That is how he confirmed the demand.
14. The matter was carried in appeal and the appellate order, fairly detailed, records the rival contentions. The appellate authority refers to the larger bench decision of the tribunal, in the case of Kirloskar Oil Engines (supra). In that the tribunal concludes that MODVAT Credit in terms of Rule 57C in respect of inputs, which have been used in manufacture of final product, fully exempted from the whole of duty of excise levaible on such products, is not available. Reproducing relevant paragraphs of the tribunal's decision, the appellate authority holds that the legal issue has been finally settled by this judgment. Once the assessees have cleared the castings (final product) without payment of duty, their case is covered by the tribunal's decision.
Therefore, the appeal was dismissed.
15. The relevant rules have been placed for our perusal by the counsel appearing for the petitioners. The Chapter X procedure, which is highlighted, would denote that therein falls Rule 192, which speaks of an application for concession. The concession can be granted provided an application is made as contemplated by this rule. The argument is that there is a difference between a remission and an exemption from payment of duty. Rule 57A reads as under:-
“Rule 57A. Applicability – (1) The provisions of this section shall apply to such finished excisable goods (hereinafter referred to as the “final products”), as the Central Government may, by notification in the Official Gazette, specify in this behalf, for the purpose of allowing credit of any duty of excise or the additional duty under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may be specified in the said notification (hereinafter referred to as the “specified duty”) paid on the goods used in or in relation to the manufacture of the said final products (hereinafter referred to as the “inputs”) and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said notification, subject to the provisions of this section and the conditions and restrictions that may be specified in the notification:
Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted.
Explanation. - For the purposes of this rule, “inputs” includes - (a) inputs which are manufactured and used within the factory of production in or, in relation to the manufacture of final products, and (b) paints and packaging materials, but does not include –
(i) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products;
(ii) Packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging any final products;
(iii) Packaging materials the cost of which is not included or had not been included during the preceding financial year in the assessable value of the final products under section 4 of the Act;
(iv) cylinders for packing gases;
(v) Plywood for Tea Chests; or (vi) bags or sacks made out of fabric (whether or not coated, covered or laminated with any other material) woven from strips or tapes of plastics.”
16. A bare perusal of Rule 57A would indicate as to how the provisions apply to the finished excisable goods, which are mentioned as final products in the notification to be issued by the Central Government and published in the official gazette. It is only to these final products that the credit of any duty of excise or the additional duty under Section 3 of the Customs Tariff Act, 1975, as may be specified in the said notification, paid on the goods used in or in relation to the manufacture of the final products (referred to as 'inputs') can be availed of. Thus, the credit of duty of excise paid on the goods is used or in relation to manufacture of the said final products is allowed, but that is towards payment of duty of excise leviable on the final products.
Rule 57A is stated to be conferring a substantive right. What the parties are relying upon is Rule 57C, which reads as under:-
“Rule 57C. Credit of duty not to be allowed if final products are exempt. - No credit of the specified duty paid on the inputs used in the manufacture of a final product (other than those cleared either to a unit in a Free Trade Zone or to a hundred per cent Export Oriented Unit) shall be allowed if the final product is exempted from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty.”
17. A bare perusal of this rule would indicate as to how no credit of the specified duty paid on the inputs used in the manufacture of a final product shall be given if the final product is fully exempt from duty or is chargeable to nil rate of duty.
18. Since heavy reliance is placed on the judgment of a Division Bench of the High court of Kerala [Premier Tyres Limited. (supra)], we ought to note facts therein. The Premier Tyres Limited, who was the assessee before the High Court, a manufacturer of tyres, filed a declaration under Rule 57G of the Central Excise Rules and took MODVAT Credit in respect of the inputs specified under Rule 57A. After the finished goods were manufactured, the assessee cleared part of the goods free of duty under a notification. The Department took the view that since the part of the goods was cleared without duty, the credit entry with regard to that be reversed. The Department relied upon Annexure 'A' and in which it was stated that the proportionate amount of duty on inputs utilised in the manufacture of the tyres and tubes may be reversed. Against that, an appeal was preferred before the appellate authority, which rejected the contentions of the assessee. The tribunal took the view that the rules as such provide for taking of the MODVAT Credit on the specified inputs when the specified product in or in relation to which these inputs are to be used are not exempted. The tribunal took a view that at the time when the inputs were received, there was no exemption for payment of duty on the finished products.
It is possible that in some cases the finished product as such maybe chargeable to duty but the same may be cleared without payment of duty under certain conditions and such cases cannot be taken to be covered by Rule 57C and Rule 57C can be taken to be applicable only in cases where at the time when the inputs were received and when the credit is to be taken the finished specified goods can be cleared under a general exemption notwithstanding the same being specified under Rule 57A.
Therefore, the tribunal held that the credit taken was correctly taken and the only fault that can be found by the authorities is with reference to the utilisation of the same. That is why the tribunal further held that the manner of utilisation of the credit is specified under Rule 57F and under Rule 57F(3). The same can be used for payment of duty on any of the final product in or in relation to the manufacture of which such inputs are intended to be used.
19. It is that view of the tribunal and correctness of which fell for consideration of the High Court of Kerala. That is how it made observations in paras 4 and 5 in holding that utilisation of the credit comes after allowing a credit of duty paid on the inputs. If any credit is wrongly taken and then utilised, there are provisions in the MODVAT Scheme under Rule 57-I, by which limitation of period has been provided for recovery of the wrong credit initially taken or utilised. The High Court held that utilisation of the credit is different from taking the MODVAT Credit if at the time of taking the MODVAT Credit, products are not exempted. Thus, it is not necessary to reverse the entry immediately. It is enough if it is utilised later. In the case before the High Court, exemption notification was subsequently issued.
The exemption notification was not there at the time when the credit was taken. Thus, on facts the question of law was answered in favour of the assessee and against the Revenue.
20. In the case of Kirloskar Oil Engines Limited (supra), the larger bench of the tribunal was deciding the correctness of a view referred for its opinion. The tribunal found that the facts in that case and several cases covered by the referring opinion need not be gone into in detail. However, it referred to a case of Wipro International Technology. In that case, the Assistant Collector demanded an amount of proforma credit, which was taken by the assessee under Rule 56A and subsequently utilised it against payment of duty on the computers manufactured by them. On 17th March, 1985, the Central Government issued Notification No.67/85 exempting computers from duty. Consequently, the benefit of Rule 56A became inapplicable to component parts to be utilised in manufacture of computers because of full exemption to computers under the said notification. Wipro urged that the notification had been issued subsequent to their taking proforma credit for the component parts and subsequent also to their utilising the credit for the clearance of computers manufactured by them according to which, the credit which was lawful at the time it was taken and the utilisation of credit which was lawful at the time of utilisation, recovery should not be effected because, subsequently, computers were exempted from duty and that cannot be made subject matter of the reversal. That is how the tribunal also considered the correctness of the view taken in Premier Tyres. That was a judgment rendered by the Southern Regional Bench of the tribunal. The facts in Premier Tyres have already been noticed by us. The larger bench decision eventually, in para 17, holds that at the stage of taking the MODVAT Credit is immediately at the time of receipt of the inputs and the duty paying documents thereon in the factory whereas utilisation of the credit would be only at a later stage when the inputs are utilised in the manufacture of the final product and clearance of the said product takes place from the factory. Rule 57F, inter alia sets out the manner of utilisation of the credit as to for what purposes the credit taken on the inputs is utilised. Rule 57C, on the other hand, in very clear terms mandates that no credit of duty paid on the inputs used in the manufacture of a final product shall be given if the final product is fully exempt from duty or is chargeable to nil rate of duty. Question of utilisation of credit would obviously come as a second step after allowing a credit of duty paid on the inputs. If there is a bar on allowing of the credit on the inputs for certain reason, the question of its utilisation after having taken a wrong credit does not arise. If any credit is wrongly taken and then utilised, there are provisions in the MODVAT Scheme itself under Rule 57-I by which limitation of period has been provided for recovery of the wrong credit initially taken or utilised. Thus, the object of the MODVAT Scheme was to avoid high cost economy or to give a complete reimbursement of the duty so that there is no hyper technical embargo on initially giving of MODVAT Credit of duty paid on inputs used in the manufacture of fully exempted final product. There, the argument that stage of utilisation is different from the stage of giving credit is not relevant. Once there is an existing notification on the statute book at the time of receipt of inputs for use in the manufacture of such final products, it cannot be stated with any element of correctness that the manufacturer was not aware of availing of the said exemption notification in the absence of any order in his hand for clearing the final product under the said notification.
21. Therefore, the observations in para 17.1 would apply to cases which are of the nature found by the tribunal. The allegations and the demand is clear. Petitioner no. 1 clear their final product, castings. The aluminium ingots were inputs for the manufacture of castings. The castings were cleared following the Chapter X procedure referred above. The argument that the duty was remitted and not exempted has been rejected by holding that the petitioners rightly understood the later part of Rule 57C, namely, the castings are chargeable to nil rate of duty. In the present case, the petitioners state that there is a substantive right conferred by Rule 57A. What they have referred to is Rule 192. In their argument, they contended that Rule 57C will have no application. It is their case that the duty was remitted and not exempted. The petitioners also tried to explain the concept of charge at nil rate of duty. The argument essentially was that grant of remittable duty cannot be either exemption or duty being chargeable at nil rate. They explain the procedure by pointing out as to how the availment is taken. Even in this petition, they argued on the footing that they are manufacturers of castings.
The castings manufactured by petitioner no. 1 are in turn used in automobile industry. The inputs required to manufacture the said castings are aluminium ingots. The petitioners avail the credit of duty paid on these inputs under Rule 57A of Central Excise Rules, 1944, as against the duty paid on clearances of castings. The petitioners, duly maintain the register prescribed under RG 23A. At the time of clearance of castings, petitioner no.1 issues gate pass/invoice as per the provisions of Rule 52A and clears the same on payment of duty by debiting the amount of credit of duty maintained in said register RG 23A. The duty paid by petitioner no. 1 on castings is in turn available for taking credit by the consignee/buyer of the castings who then utilizes the same towards payment of duty on his final product. It is he who decides whether he should pay the duty on these inputs (castings) or should go by Chapter X procedure. The buyer of castings, therefore, has a choice to either purchase the castings against the duty paying document and then in turn avail MODVAT Credit or instead of following the procedure of MODCAT Credit, obtain remission of duty under Chapter X and purchase the castings without payment of duty. This choice of the buyer of the castings does not make the castings per se chargeable to nil rate of duty or wholly exempt from payment of duty. Then, the argument was that the petitioner being manufacturer of castings at the time of receipt of inputs for manufacture of castings was not aware or cannot foresee which inputs shall be used in the manufacture of castings which the buyer decides/elects to purchase on payment of duty or on remission of duty sanctioned by the competent authority. Pertinently, the petitioners did not provide any explanation as to why they reversed the duty. The argument was that there is no one to one co-relation. Therefore, there is no bar to the petitioners availing the benefit of MODVAT Credit. As long as there are clearances of final product on payment of excise duty, but admitting that some clearances of final product were without payment of duty, that the action is justified by the petitioners.
22. We are of the clear opinion that when the impugned order terms this exercise of the petitioners as jugglery, then, that finding and remark is fully justified. We have perused the entire paper book and found that there is no explanation provided, much less reasonable and plausible by the petitioners for the decision to initially reverse the MODVAT Credit, but later on shifting their stand and refusing to reverse it. It is for that the show cause notices were issued and the explanation was sought.
It is in that process that the petitioners relied upon all the decisions referred above. Once they had no application to the facts and circumstances of the petitioners' case, then, we do not think that the concurrent findings in the orders impugned before us to be perverse or vitiated by error of law apparent on the face of the record. In any event, the arguments that are now canvassed before us were all considered by the appellate authority. We do not think that the impugned order suffers from any serious legal infirmity requiring interference in writ jurisdiction.
23. As a result of the above discussion, this writ petition fails.
Rule is discharged. However, in the facts and circumstances of the case, there would be no order as to costs.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
1 1997(73) ELT 835
2 1999 (112) ELT 353
3 2001 (130) ELT 417
4 (2006) 6 SCC 345
5 1992(20) ETR 67