Excise Appeal Nos. 4-7, 9-23, 26 & 27 of 2008 and 6 & 10 of 2009. Case: Commissioner of Central Excise, Goa Vs Essel Propack Ltd.. High Court of Bombay (India)

Case NumberExcise Appeal Nos. 4-7, 9-23, 26 & 27 of 2008 and 6 & 10 of 2009
CounselFor Appellant: Ms. S. Linhares, Central Government Standing Counsel. and For Respondent: Ms. Priyanka Kamat, Advocate.
JudgesF.M. Reis and K.L. Wadane, JJ.
IssueCentral Excise Act, 1944 - Section 35G; Finance Act, 1994 - Section 83
Citation2015 (39) STR 363 (Bom)
Judgement DateFebruary 18, 2015
CourtHigh Court of Bombay (India)

Judgment:

F.M. Reis, J.

  1. All the above appeals were ordered to be taken up together as the Counsel appearing for the parties had contended that common substantial questions of law arise in all the above appeals.

  2. The above appeals came to be admitted by this Court by an order dated 21st July, 2008. Thereafter, at the request of and by consent of the learned Counsel, the substantial questions of law came to be modified by an order dated 29th January, 2015. The modified substantial question of law by consent, reads thus:

    Whether the respondent is entitled to claim Cenvat credit prior to 16-6-2005 on the basis of TR-6 Challan, in terms of Rule 9 which was introduced on 16-6-2005?

  3. Learned Counsel appearing for the appellants have pointed out that Rule 9 of Cenvat Credit Rules, 2004 clearly provides the requisite documents to be produced in order to avail of the Cenvat credit. The learned Counsel further point out that the respondents have not produced any of such documents and, as such, the question of availing of any credit, on such basis, would not arise at all. The learned Counsel further points out that the respondents have a TR-6 Challan to substantiate their claim for refund of Service Tax though such document was introduced by the amendment to the Rule in 2005 to avail of Cenvat credit. The learned Counsel further points out that the subject period, in the present proceedings, is from 1-5-2005 to 15-6-2005 when the said amendment was not in force, and as such, the question of relying upon such TR-6 Challan does not arise at all. The learned Counsel further point out that the Authorities below have misconstrued the relevant provisions of the Rules to come to the conclusion that the respondents were eligible for such credit. The learned Counsel, as such, submits that the substantial question of law be answered in favour of the appellants.

  4. On the other hand, learned Counsel appearing for the respondents have supported the orders passed by the Authorities below. The learned Counsel points out that the fact that the respondents are eligible for such credit, has not been disputed by the Authorities. The learned Counsel further submits that the right to avail such credit flows from Rule 3 of the Cenvat Credit Rules, 2004 and not under Rule 9 which is only procedural. The learned Counsel further submits that even in the year 2004-05 TR-6 Challans were issued when certain tax was paid and such documentary evidence which comes from the...

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