IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 C.E.Appeal.No. 28 of 2010() --------------------------- (FINAL ORDER NO.1287/2009 IN APPEAL NO.E 896/2006 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... APPELLANT/APPELLANT: -------------------- M/S.ITEL INDUSTRIES LTD, (FORMERLY KNOWN AS TATA TELECOM LTD) KANJIKODE WEST,PALAKKAD REPRESENTED BY ITS AUTHORISED SIGNATORY,R.RAMKUMAR,S/O.M.RAMACHANDRAN AGED 57,16,ABHINAV ANCHORAGE,VENKATEWSWARA NAGAR II STREET,KARPAGAM GARDENS,ADYAR,CHENNAI 600020. BY ADV. DR.K.B.MOHAMMEDKUTTY (SR) SRI.K.M.FIROZ RESPONDENTS/RESPONDENTS: --------------- 1. THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE,DIVISION 1, PALAKKAD. 2. THE COMMISSIONER OF CENTRAL EXCISE, CALICUT COMMISSIONERATE,C.R BUILDING MANANCHIRA,CALICUT 673 001. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX FOR R1 &2 THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON 03/08/2011 DELIVERED THE FOLLOWING: APPENDIX ANNEXURE A1: TRUE COPY OF ASSESSMENT ORDER DT.30.11.2004. ANNEXURE A2: TRUE COPY OF ORDER OF THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEALS) COCHIN DT.31.3.2006. ANNEXURE A3: CERTIFIED COPY OF ORDER NO.1287/2009 DT.23.10.2009 IN APPEAL NO.EXCISE/896/2006 PASSED BY HON'BLE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, BANGALORE. TRUE COPY P.S. TO JUDGE C.R. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... C.E. Appeal No.28 of 2010 .................................................................... Dated this the 3rd day of August, 2011. JUDGMENT Ramachandran Nair, J. The appellant-company is engaged in manufacture and sale of telephone instruments. Along with the telephones and independently appellant is also engaged in sale of Modular Terminal Rosset (MTR) which is a plastic box with provision to plug in a male jack to facilitate connection to the telephone instrument from external line. The telephone instrument can be directly connected to the line without the use of MTR which is therefore only an accessory to the telephone instrument. While appellant is manufacturing telephone instrument by themselves, so far as MTRs are concerned, appellant gets the item manufactured by other SSI units engaged on job work basis. Under the arrangement with the manufacturing units appellant purchases components and supplies the same to the SSI units for manufacture and return of the same against payment of labour charges. On the purchase CEA 28/2010 2 of components for MTR appellant claimed duty credit following the procedure prescribed under Rule 57F(2) of the Central Excise Rules which entitles the principal manufacturer to claim duty credit on components purchased and delivered to job workers for manufacture and return. Under the procedure prescribed, appellant has to record the details of purchases and duty credit availed on inputs transferred to job worker in the RG 23A register maintained by it. There is no controversy on the legal position that the principal manufacturer who avails duty credit on components purchased and transferred to job worker for manufacture and return, is bound to pay duty on clearances i.e. at the time of sale. In fact, Rule 57A provides for adjustment of input tax credit availed against duty payable on the final product cleared from the factory. 2. Even though under the scheme above stated appellant availed duty credit on components of MTRs purchased and transferred to SSI units for manufacture of MTR units and received back the goods and sold along with telephone instruments and independently, appellant did CEA 28/2010 3 not pay duty contending that the appellant is not the manufacturer. The Assessing Officer took the view that by virtue of the procedure followed by the appellant provided under Rule 57F(2) and the duty credit availed on inputs purchased and transferred to SSI units, appellant is liable for payment of duty, no matter appellant got the MTR assembled/manufactured by outsourcing the service of job work. In order to substantiate appellant's claim that they are not liable to pay duty on the MTRs cleared by them after receipt from job workers, appellant after two years from availing duty credit on components and inputs, reversed the credit. The Assessing Officer, however, held that the belated reversal of credit is not going to absolve the appellant from payment of duty on MTRs as principal manufacturer, which had really fallen on the appellant by virtue of the procedure followed i.e. under Rule 57F(2), which according to the Assessing Officer is irreversible and appellant cannot escape from liability by reversing the duty on input tax credit claimed on purchase of components later. The first appellate authority as well as the Customs, Excise & Service Tax CEA 28/2010 4 Appellate Tribunal confirmed the levy, against which the assessee- company has filed this appeal. We have heard Senior counsel Dr.K.B.Mohammedkutty appearing for the appellant and Standing Counsel Sri.Thomas Mathew Nellimoottil appearing for the department. 3. Counsel for the appellant relied on several decisions of the Supreme Court and other High Courts, particularly in CCE BARODA VS. MM KHAMBATWALA reported in 1996(84) ELT 161, decision in the case of EMPIRE INDUSTRIES LTD. VS. UNION OF INDIA reported in 1985(20) ELT 179, and decision in UGAJAR PRINTS, ETC. ETC. VS. UNION OF INDIA reported in 1988(38) ELT 535. Standing Counsel appearing for the respondents relied on the decision of the Supreme Court in M/S.I.M. CENTRE PVT. LTD. VS. COLLECTOR OF CENTRAL EXCISE, PUNE reported in AIR 2005 SC 1139, in CHANDRAPUR MAGNET WIRES(P) LTD. VS. COLLECTOR OF C.EXCISE, NAGPUR reported in 199(81) ELT 3 and the decision of the Rajastan High Court in KAMRA BOTTLING CEA 28/2010 5 COMPANY VS. COMMISSIONER OF C. EX., JAIPUR reported in 2009(233) ELT 329. 3. After hearing both sides and after going through the orders impugned, we are unable to accept the contention of the appellant that it has no liability to pay duty by virtue of the reversal of credit taken on inputs purchased and transferred to job workers for manufacture and return of MTRs. This is because the appellant by adopting the procedure prescribed under Rule 57F declared itself as the principal manufacturer and took duty credit on inputs and components purchased and transferred to job workers who manufactured MTRs on collection of labour charges and returned the same to the appellant. Admittedly appellant marketed the products manufactured by engaging job workers and by virtue of the procedure prescribed under Rule 57F adopted by the appellant, appellant cannot turn back and say that duty is payable by the actual manufacturer which is the job worker. The appellant admittedly availed duty credit on the inputs and components purchased which are transferred to the job workers for manufacture and return of CEA 28/2010 6 MTRs. Rule 57A clearly states as follows: "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." What is clear from the above Rule is that the duty credit availed on inputs is only for adjustment against duty payable on the final product manufactured and sold. When the appellant claims credit of duty paid on inputs purchased, it is the duty of the appellant to adjust the duty credit availed on inputs against duty payable on the sale of the final product which in this case is MTR. During hearing of the matter, we queried with the department as to whether the job workers were CEA 28/2010 7 assessed for the duty payable on MTRs which admittedly were manufactured by them. The department after verifying facts submitted that job workers who manufactured the goods are SSI units which are enjoying duty exemption and further, by virtue of the procedure adopted by the appellant under Rule 57F(2), they had no liability to pay duty because on return of manufactured goods appellant was supposed to pay duty by adjusting duty credit available on inputs. The appellant's contention that after two years they have reversed the duty credit availed on inputs will save them from liability cannot be accepted because appellant's original conduct in availing procedure under Rule 57F(2) is an irreversible procedure whereby the job workers are not liable to account the department for payment of duty on manufacture. We do not find any of the decisions cited by the appellant help them to get out of the liability. The Tribunal rightly held that the MTRs do not constitute an integral part of the telephone, but are accessories on which duty is payable on clearance made by the appellant. Since appellant has availed duty credit on the inputs CEA 28/2010 8 purchased and transferred to job workers for manufacture, appellant has to necessarily pay duty on the MTRs sold and adjust duty credit availed on the components by following Rule 57A extracted above. However, we make it clear that since the duty liability on the appellant is upheld, appellant is entitled to adjust duty credit availed on components and the reversals made by the appellant could again be reversed to enable it to set off duty credit availed on components purchased against duty payable on the final product namely, MTR. Appeal challenging the demand of duty is dismissed. Sd/- C.N.RAMACHANDRAN NAIR Judge Sd/- P.S.GOPINATHAN Judge True copy P.S. to Judge pms