IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.E.A. No. 1 of 2006 DATE OF DECISION: February 3, 2009 The Commissioner, Central Excise, Ludhiana …Appellant Versus M/s Nestle India Limited, Moga and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. Kamal Sehgal, Senior Panel Counsel, for the appellant. Mr. V. Laksmi Kumaran, Advocate, with Mr. Manish Pandu, Advocate and Mr. Sandeep Goyal, Advocate, for respondent No. 1. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This order shall dispose of C.E.A. Nos. 1, 42, 48 and 62 of 2006, which have been filed by the revenue under Section 35-G of the Central Excise Act, 1944 (for brevity, ‘the Act’) against various orders passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, ‘the Tribunal’). C.E.A. No. 1 of 2006 On 10.8.2006, the Division Bench admitted C.E.A. No. 1 of 2006 to consider the following questions of law:- “1. Whether Tribunal is justified in vacating the demand when it has been proved on the record that party was availing Modvat credit on the inputs namely Residual Furnace Oil (R.F.O.) used as input for generation of steam used for manufacturing of dutiable as well as exempted goods and party was not maintaining any separate accounts of the said inputs being used in manufacture of exempted goods as per provisions of Rules 57CC(9)? 2. Whether party is liable to pay an amount of Rs. 1,79,52,77,469/- (Rupees one crore seventy nine lakh (sic) only) which is equivalent to 8% of the price of said exempted goods in terms of rule 57CC(9) of the rules, which include the credit of Rs. 1,80,49,568/- (Rupees one crore eighty lakh forty nine thousand five hundred sixty eight only)?” On 10.8.2006 itself, CEA No. 62 of 2004 was also admitted by the Division Bench and the same was ordered to be heard alongwith CEA No. 1 of 2006. Subsequently on 21.9.2006 and 28.9.2006, CEA Nos. 48 and 42 of 2006 respectively were admitted by the Division Bench and the same were ordered to be heard alongwith CEA No. 62 of 2004. In this manner, all these appeals were clubbed together. Moreover, similar facts and common questions of law are involved in these appeals. However, the facts are being referred from CEA No. 1 of 2006. 2 C.E.A. No. 1 of 2006 M/s Nestle India Ltd., Moga-respondent No. 1 is engaged in the manufacture of excisable goods. The dutiable products manufactured by respondent No. 1 are, namely, (a) Sweetened Condensed Milk; (b) Noodles; and (c) Nescafe. Certain excisable goods being manufactured by the assessee-respondent No. 1 were exempted from whole of the duty of excise. The products exempt from payment of excise duty or are chargeable to no duty of excise are (i) Baby Foods; (ii) Milk Powder; (iii) Ghee; and (iv) Sauces and Soups. It was availing Modvat credit of duty paid on inputs used in or in relation to the manufacture of excisable goods under Rule 57- AA and Rule 57-AB of the Central Excise Rules, 1944 (for brevity, ‘the Excise Rules’). At the time of their visit to the factory premises of the assessee-respondent No. 1, the Range Staff noticed that the assessee- respondent No. 1 was availing Modvat Credit on inputs known as Residual Furnace Oil (RFO) falling under Chapter 27 of the first schedule of the Central Excise Tariff Act, 1985 (for brevity, ‘the 1985 Act’) and under Rule 57AA(d) of the Excise Rules. The RFO/Furnace Oil is purchased by them on payment of excise duty. The RFO was being used for generation of steam within the factory premises, which was used for manufacture of dutiable as well as exempted excisable final products or the goods charged to nil rate of duty. It is noteworthy that the entire steam generated by using RFO as fuel is used by them in the manufacturing process only and no part of the steam so generated is used by respondent No. 1 for any other purpose whatsoever. This factual position is undisputed. Accordingly respondent No. 1 has been availing Modvat Credit on the duty paid on RFA right from 1994. It was also found that the assessee-respondent No. 1 was not 3 C.E.A. No. 1 of 2006 maintaining any separate records of the said inputs being used in the manufacture of exempted goods or goods charged to nil rate of duty as required under Rule 57AD(2) of the Excise Rules, which was applicable at that point of time. It is the case of the revenue that from 1.4.2000 to 31.12.2000, the assessee-respondent No. 1 had cleared goods chargeable to nil rate of duty or exempt from the whole of the duty of excise in which common inputs had been used but for which no separate accounts had been maintained. Accordingly, it was liable to pay an amount equivalent to 8% of the price of the said exempted goods in terms of Rule 57AD(2) of the Rules. The department issued periodical show cause notices to respondent No. 1 demanding 8% of the price of exempted goods manufactured by it by invoking Rule 57CC of the Excise Rules. The following seven show cause notices were issued:- Sr. No. Show Cause Notice No. Period Amount (in Rs.) 1. V(27) 15/CE/01/ADJ/CHD- II/2000/ 960-64, dated 21.3.2001 1.9.96 - 31.7.98 104,39,18,081/- 2. V 30(27)D/30/47/99/1097-99 dated 3.3.1999 1.8.98 – 31.12.98 25,38,40,015/- 3. V (4)D/27/Nestle/ 99/3921-23 dated 31.7.1999 1.1.99 – 30.6.99 26,68,00,998/- 4. V(4)D/ 18/Nestle/2000/777-78 dated 1.2.2000 1.9.99 – 31.2.99 10,37,06,426/- 5. V(21)15/ Central Excise/11/ Adj/CHD-II/2001/1008-11, dated 25.1.01 1.1.2000 – 31.3.2000 12,70,11,949/- 6. V(27)15/CE/25/ CHD-II/2001/ 1406-1410 dated 25.4.01 1.4.00 – 31.12.00 46,02,88,095/- 7. V(19&21) 15/CE/78/ Comm. Adj./CHD-II/02/883-885 dated 1.8.02 1.7.01 – 31.8.01 9,03,96,037/- 4 C.E.A. No. 1 of 2006 On 25.4.2000, a show cause notice was issued raising a demand of Rs. 46,02,88,095/- under Rule 57AH of the Excise Rules read with Section 11A of the Act. The appellant also proposed penal action under Rule 173Q of the Excise Rules and payment of interest under Section 11AA/11AB of the Act. On 24.7.2003, the Commissioner, Central Excise, Ludhiana, passed a detailed order and also ordered for recovery of Rs. 60,37,706/- i.e. the entire amount of the Modvat/Cenvat credit availed by the assessee-respondent No. 1 on RFO as common input, which was used for manufacture of dutiable and exempted goods under Rule 57AH of the Excise Rules read with Section 11A of the Act. An amount of Rs. 2,40,87,274/- was ordered to be adjusted against the aforesaid amount, which had been debited by the assessee-respondent No. 1 in two instalments. The Commissioner also imposed a penalty of Rs. 60,37,706, which was equal to disallowed credit as provided under Rule 57AH(2) of the Excise Rules read with Section 11AC of the Act. Charging and appropriation of interest under Rule 57AH of the Excise Rules read with Section 11AB of the Act was also ordered. However, in view of Board’s Circular F.No. 591/28/2001-CX, dated 16.10.2001, the Commissioner has confirmed the demand of Rs. 1,80,49,568/- only and the remaining demand of Rs. 1,77,72,27,901/- was deemed to have been dropped (A-1). Against the order dated 24.7.2003 (A-1) passed by the Commissioner, the assessee-respondent No. 1 preferred an appeal before the Tribunal. The Tribunal has allowed the appeal in terms of its final order dated 11.12.2003, earlier passed in the case of the assessee-respondent No. 5 C.E.A. No. 1 of 2006 1 itself, bearing Appeal No. E/1590/2003-NB(a) & E/M/359/2003-NB(A), and set aside the order passed by the Commissioner by observing as under:- “3. It is seen that the Commissioner rejected the contention raised by the assessee on the basis of the decision of the Larger Bench of this Tribunal in Ballarpur Industries Ltd. Vs. CCE Belgaum 2000 (116) ELT 312(T) on the ground that in the facts of the above case the inputs used for generation of electricity was in turn used for manufacture of excisable goods whereas in the present case steam produced out of RFO is used in the manufacture of both dutiable and exempted goods. The appellants are fully justified in contending that the credit cannot be denied even if the steam is utilised for manufacture of exempted final products also in the light of the proviso inserted to Rule 57A w.e.f. 18.5.95. The above proviso reads as follows:- “Provided also that the credit specified duty shall be allowed in respect of inputs which are used for generation of electricity or steam, used for manufacture of final products or for any other purpose within the factory of production.” In Navsari Oil Products Ltd. Vs. CCE Surat 2993(53) RLT 96 we have taken the view that words “for any other purpose within the factory of production” would take in manufacturing non-dutiable items also. The ratio of the above decision is directly applicable to the facts of the present case. 6 C.E.A. No. 1 of 2006 4. In the light of the above, we set aside the order impugned and allow the appeal.” Mr. Kamal Sehgal, learned counsel for the Revenue-appellant has argued that under Rule 57AD(2) of the Excise Rules which was applicable from 01.04.2000 to 31.12.2000, the assessee-respondent No. 1 had cleared the goods which were chargeable to nil rate of duty or which were exempted from whole of the duty of excise in which common inputs had been used. He has pointed out that no separate accounts had been maintained and accordingly the assessee-respondent No. 1 was liable to pay an amount equivalent to 8% of the price of the said exempted goods in terms of 57AD(2) of the Excise Rules. The learned counsel has contended that separate accounts were required to be maintained in respect of the inputs being used in manufacture of exempted goods as per requirements of Rule 57CC(9) of the Excise Rules. He has further argued that the goods used for generation of steam was specifically covered by Clause (iv) of Rule 57B(1), the RFO in question would fall under that category and would not be covered by the category of goods used as fuel and therefore, would not get excluded from the purview of Rule 57CC of the Excise Rules. However, on the contrary, Mr. V. Laksmai Kumaran has pointed out that Rule 57CC of the Excise Rules itself has carved out an exception in respect of inputs which are used as fuel and the issue is not longer res integra. According to learned counsel, the rule itself provides that where an input is used as fuel in the manufacture of both dutiable and exempted final products, the provisions of sub-Rule (ix) of Rule 57CC and sub-Rule (i) of Rule 57CC of the Excise Rules would have no application 7 C.E.A. No. 1 of 2006 whatsoever. According to learned counsel, once the input in question in which the Modvat credit has been taken is used only as a fuel then Rule 57CC of the Excise Rules would have no application. He has emphasized that the RFO has been used by respondent No. 1 in the boilers for generation of steam and for that purpose the RFO has been used as fuel only. Mr. V. Laksmai has submitted that the reasoning of the revenue-appellant that Rule 57CC of the Excise Rules would apply is ex facie, erroneous and contrary to express language of Rule 57E, Rule 57B and Rule 57CC of the Excise Rules. He has highlighted that for the purpose of Rule 57CC of the Excise Rules input should be used as fuel and once it is accepted that the input in question has been used as fuel irrespective of the fact whether it has been used for generation of steam or for electricity or for any other purpose, nothing more is required to be looked into. Accordingly, the provisions of Rule 57CC would not apply. He has drawn our attention to the show cause notice where the aforesaid factual position has not been disputed. This position has also remained undisputed in the Order-in- Original and the impugned order passed by the Tribunal. He has stressed that those inputs which are used as fuel have been specifically excluded by Rule 57CC of the Excise Rules and accordingly, so long as the input can be established to be used as a fuel, the exclusion under Rule 57CC of the Excise Rules would operate irrespective of the outcome of such a use as a fuel. In order to support his submission, learned counsel has placed reliance on a judgment of this Court rendered in case of CCE v. Super Auto (I) Ltd., 2008 (221)ELT 41 (P&H). 8 C.E.A. No. 1 of 2006 Another submission made by the learned counsel is that RFO has been used inside the factory of respondent No. 1 in their boilers to generate steam for manufacturing of both dutiable and exempted final products. They have been receiving duty paid RFO and were availing Modvat credit thereon under the provisions of Rule 57B of the Excise Rules. The RFO was used for generation of steam which in turn was further used for manufacture of final products. The learned counsel has maintained that Rule 57B stipulates the eligibility to avail credit of duty on certain goods and the inputs used for the generation of the electricity or steam are specifically covered under Clause (iv) of sub-Rule (i) of Rule 57B of the Excise Rules. The said Rule allows credit on inputs used for generation of electricity or steam, which has been used for manufacture of final products or for any other purpose within the factory. Therefore, such inputs used for generation of electricity or steam used within the factory of production for any purpose manufacturing or otherwise would be eligible for credits. There is no qualification or stipulation that such input used for generation of electricity or steam is required to be used only for manufacturing of dutiable final product. He has maintained that the issue is no longer res integra and is covered in favour of the assessee-respondent No.1 and against the revenue-appellant by two judgments of Hon’ble the Supreme Court rendered in cases of CCE v. Gujarat State Fertilizer and Chemical Ltd., 2008(229) ELT 9 and CCE v. Solaris Chemtech Ltd., 2007(214) ELT 481. His last submission is that without prejudice to the aforesaid submission and purely in the alternative the demand of 8% of the total value 9 C.E.A. No. 1 of 2006 of the sales under Rule 57CC on the assessee-respondent No. 1 would not survive once they have reversed the whole amount of credit taken on the RFO used in the generation of steam in the manufacture of both dutiable as well as exempted final products. Accordingly, it has to be treated that the assessee-respondent No. 1 did not avail any Modvat credit on these inputs and Rule 57CC (1) of the Excise Rules would have no application as the basic condition would remain unfulfilled which requires that the manufacturer had taken Modvat credit on the inputs used in the manufacture of dutiable product as well as any other final product chargeable to NIL rate of duty or wholly exempted from payment of duty. In support of his submission, learned counsel has placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of Chandrapur Magnet Wires Ltd. v. CCE, 1996 (81) ELT 3. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that the matter is covered against the revenue-appellant and in favour of the assessee-respondent No. 1 by the Division Bench judgment of this Court rendered in the case of Super Auto (Supra). It would be necessary first to read Rule 57CC (1) and (9) of the Excise Rules: - “57CC. Adjustment of credit on inputs used in exempted final products or maintenance of separate inventory and accounts of inputs by the manufacturers: (1) Where a manufacturer is engaged in the manufacture of any final product which is chargeable to duty as well as in any other final product which is not chargeable to duty and the 10 C.E.A. No. 1 of 2006 manufacturer takes credit of the specified duty on any inputs (other than inputs used as fuel) which is used or ordinarily used in or in relation to the manufacture of both the aforesaid categories of final products, whether directly or indirectly and whether contained in the said final products or not, the manufacturer shall, unless the provisions of sub-rule (9) are complied with, pay an amount equal to eight per cent of the price (excluding sales tax and other taxes, if any, payable on such goods) of the second category of final products charges by the manufacturer for the sale of such goods at the time of their clearance from the factory. xxxx xxx xxxx xxx (9) In respect of inputs (other than inputs used as fuel) which are used in or in relation to the manufacture of any goods, which are exempt from the whole of the duty of excise leviable thereon or chargeable to Nil rate or duty, the manufacturer shall maintain separate inventory and accounts of the receipt and use of inputs for the aforesaid purpose and shall not take credit of the specified duty paid on such inputs.” (emphasis added). A perusal of the aforesaid Rules shows that the inputs other than the inputs used as fuel are covered by the aforesaid provision. Likewise, Rule 57CC (3) of the Excise Rules also excludes the application of Rule 57C(2) and the aforesaid Rules reads as under:- 11 C.E.A. No. 1 of 2006 “57C. Credit of duty not to be allowed if final products are exempt:- (1) xxx xxx xxx (2) Where a manufacturer avails of the credit of specified duty on any inputs and he is engaged in the manufacture of any final product which is chargeable to duty as well as in the manufacture of any other final product which is not chargeable to duty in the same factory, the provisions of sub- Rule (1) shall be deemed to be satisfied only when the manufacturer follows the procedure prescribed in sub-Rule(1) of Rule 58CC or the provisions of sub-Rule (9) of that Rule are complied with. (3) Sub-rule (2) shall not apply to inputs intended to be used as fuel.” The aforesaid Rule also shows that in case a manufacturer is engaged in the manufacture of any final product chargeable to duty as well as in the manufacture of any other final product which is not chargeable to duty in the same factory then the provisions of sub-Rule (1) could be deemed to have been satisfied only when the procedure prescribed by sub- Rule (1) of Rule 57CC or the provisions of sub-Rule (9) of the Excise Rules are complied with. The aforesaid provision in turn requires that a manufacturer must maintain separate accounts in respect of the final product which is chargeable to duty and the other final product which is not chargeable to the duty in the same factory. However, sub-Rule (3) of Rule 57C of the Excise Rules in categorical term exclude the application of sub- 12 C.E.A. No. 1 of 2006 Rule (2) of Rule 57C to inputs which are intended to be used as fuel. While interpreting the aforesaid provisions, the Division Bench of this Court (of which one of us M.M. Kumar, J., was a member) in the case of Super Auto (supra) has held as under:- “8. A conjoint reading of rub-rule (2) and (3) of Rule 57C of the Rules shows that in cases where inputs are intended to be used as fuel, the provision of sub-Rule (1) of Rule 57CC of the Rules are not to apply. However, in other cases where a manufacturer of any final product which is chargeable to duty as well as in any other product that is not chargeable to duty the manufacturer in order to take credit has to comply with sub-rule (9) of Rule 57CC of the Rules. It envisages that separate inventory/accounts are required to be maintained in respect of the receipt and use of inputs for the aforesaid purpose. Such a manufacturer is restrained from taking credit of the specified duty paid on such items. 9. It is, thus, clear that the provisions of sub-rule (2) of Rule 57C and sub-rule (1) and (9) of Rule 57CC of the Rules do not apply to inputs intended to be used as fuel. In the instant case, there is categorical finding that furnace oil is used as ‘fuel’ only. Therefore, the view taken by the ‘Tribunal’ is unassailable and the respondent-assessee has been rightly held to be entitled to ‘Modvat credit’. Therefore, the question of law is decided against the revenue by confining it to cases 13 C.E.A. No. 1 of 2006 where the input is intended to be used as ‘fuel’ as the facts in present case reveal.” On the aforesaid premise, we are of the view that the appeals filed by the revenue-appellant are without any substance and, thus, liable to be dismissed. We are also impressed with the submission made by the learned counsel for the assessee-respondent No. 1 that the RFO received by the manufacturer was duty paid and they were availing Modvat credit thereon under the provisions of Rule 57 of Excise Rules. The RFO was used for generation of steam which was further used for the manufacture of final products. Rule 57B of the Excise Rules is the relevant Rule and can be read with advantage, which is as follows:- “RULE 57B. Eligibility of credit of duty on certain goods. – (1) Notwithstanding anything contained in Rule 57A, the manufacturer of final products shall be allowed to take credit of the specified duty paid on the following goods, used in or in relation to the manufacture of the final products, whether directly or indirectly and whether contained in the final products or not, namely:- (i) goods which are manufactured and used within the factory of products; (ii) paints; (iii) goods used as fuel; 14 C.E.A. No. 1 of 2006 (iv) goods used for generation of electricity or steam, used for manufacture of final products or for any other purpose, within the factory of production; (v) packing materials and materials from which such packing materials are made provided the costs of such packing materials is included in the value of the final product; (vi) accessories of the final product cleared along with such final product, the value of which is included in the assessable value of the final product.” The aforesaid issue is no longer res integra. In the case of Gujarat State Fertilizer and Chemical Ltd. (supra), Hon’ble the Supreme Court has considered the use of low-sulphur heavy stock which is used in the manufacture of steam, which in turn is used for manufacture of fertilizer, which is a final product and the same has been fully exempt from payment of excise duty. After noticing the judgment rendered in case of Solaris Chemtech Ltd. (supra), where the view taken by the larger Bench of the Tribunal in the case of Ballarpur Industries Ltd. (supra) was upheld, Hon’ble the Supreme has held the manufacturer-assessee to be entitled to Modvat credit for the use of low-sulphur heavy stock and also placed reliance on the view taken by the Tribunal in other cases, their Lordships’ have observed as under:- “8. The Tribunal by the impugned order has set aside the order passed by the Commissioner (Appeals) as well as that of the Authority-in-Original and allowed the appeal filed by the 15 C.E.A. No. 1 of 2006 Respondent. Insofar as the contention raised by the respondent that LSHS was being used for generation of steam which in turn was being used for manufacture of final products, namely, fertilizers was concerned, the Tribunal relying upon