Commissioner of Central Excise vs Pragbosimi Synthetics Ltd.

Madan B. Lokur, CJ.

In this appeal under section 35G of the Central Excise Act, 1944 the following substantial question of law has been framed for consideration :

"Whether NCC Duty (National Calamity Contingent duty) is a duty exempted under Notification No.32/99CE dated 8.7.1999 and, if not, whether CENVAT Credit under the CENVAT Credit Rules, 2004, can be utilized, towards payment of such duty, which is not exempted under the said Notification."

The substantial question of law is really in two parts: The first part being whether NCC duty is exempted under Notification No.32/99CE. If the answer to the first part is in the negative, then the second part is, whether CENVAT credit under the CENVAT Credit Rules can be utilized towards payment of NCC duty. Our answer to the first part of the question is in the negative and our answer to the second part of the question is in the affirmative.

NCC duty is leviable under section 136 of the Finance Act, 2001. Subsection (1) of section 136 of the Finance Act makes it clear that NCC duty is by way of a surcharge and is a duty of excise. NCC duty is chargeable on goods specified in 7th Schedule of the Finance Act and is in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (''the Excise Act''). In terms of section 136(3) of the Finance Act the provisions of the Excise Act and the Rules made thereunder relating to refunds and exemptions from duties, etc., apply in relation to the levy and collection of NCC duty.

From the above, it is quite clear that NCC duty is nothing but a duty of excise and on this, learned counsel for both parties are ad idem.

Notification No.32/99CE relates to exemption to North East States from excise duty and additional excise duty on goods cleared from certain units. This Notification has been issued in exercise of powers conferred by subsection (1) of section 5Aof the Excise Act read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and subsection (3) of section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978. By virtue of this Notification the Central Government has exempted goods specified in the First and Second Schedules to the Central Excise Tariff Act from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2004.

It is clear from the above that the general exemption is only in respect of the duty of excise or additional duty of excise under any of the above Acts, namely, the Central Excise Act, 1944, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textile and Textile Articles) Act, 1978.

The general exemption has absolutely no reference to NCC duty which is levied as a surcharge under the provisions of the Finance Act, 2001.

Consequently, insofar as the first part of the substantial question of law framed above is concerned, it must be answered in the negative which is to say that NCC duty, even though it is a duty of excise, is not exempted under Notification No32/99CE. The operation of this Notification is limited.

The second part of the substantial question of law would now arise, namely, whether CENVAT credit can be utilized towards payment of NCC duty under the CENVAT Credit Rules.

In this regard it is necessary to go through the CENVAT Credit Rules, particularly rule 3(4) and rule 3(7) thereof.

Rule 3( 1) provides that a manufacturer or producer of a final product shall be allowed to take CENVAT credit of the NCC duty leviable under section 136 of the Finance Act, 2001. To this extent there is no dispute between the parties.

Rule 3(4) of the CENVAT Credit Rules is important and this reads as follows :

(4) The CENVAT credit may be utilized for payment of

(a) any duty of excise on any final product; or

(b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or

(c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or

(d) an amount under subrule (2) of rule 16 of Central Excise Rules, 2002 ; or

(e) service tax on any output service :

Provided that while paying duty of excise or service tax, as the case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be :

Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared after availing of the exemption under the following Notifications of Government of India in the Ministry of Finance (Department of Revenue),

(i) No. 32/99Central Excise, dated the 8th July, 1999 [GSR 508(E), dated 8th July, 1999];

(ii) No. 33/99Central Excise, dated the 8th July, 1999 [GSR 509(E), dated 8th July, 1999];

(iii) No. 39/2001Central Excise, dated the 31st July, 2001 [GSR 565(E), dated the 31st July, 2001];

(iv) No. 56/2002Central Excise, dated the 14th November, 2002 [GSR 764(E), dated the 14th November, 2002];

(v) No. 57/2002Central Excise, dated 14th November, 2002 [GSR 765XE), dated the 14th November, 2002];

(vi) No. 56/2003Central Excise, dated the 25th June, 2003 [GSR 513(E), dated the 25th June, 2003]; and

(vii) No. 71/2003Central Excise, dated the 9th September, 2003 [GSR 717(E), dated the 9th September, 2003], shall, respectively, be utilized only for payment of duty on final products, in respect of which exemption under the said respective Notifications is availed of.

Rule 3(4) provides that CENVAT credit may be utilized, inter alia, for payment of any duty of excise on any final product. To this extent also there is no dispute between the parties. However, what is of importance is the second proviso to rule 3(4) of the CENVAT Credit Rules. This provides that the CENVAT credit of duty paid on inputs used in the manufacture of a final product cleared after availing of the exemption under Notification No32/99CE shall be utilized only for payment of duty on the final product in respect of which exemption under the said Notification is availed of. It is clear from this that CENVAT credit of duty paid on inputs shall be utilized only for payment of duty on the final product for which exemption is availed.

Rule 3(7) is equally important and this reads as follows :

"(7) Notwithstanding anything contained in subrule (1) and subrule (4),

(a) .

(b) CENVAT credit in. respect of,

(c) .............................................................................................

(ii) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001);

(iv) .............................................................................................

(v).............................................................................................

(vi) .............................................................................................

shall be utilized only towards payment of.......the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001, ....... respectively, on any final products manufactured by the manufacturer........." (words not necessary are deleted)

Rule 3(7) provides that notwithstanding anything contained in subrule (1) and subrule (4), CENVAT credit in respect of NCC duty shall be utilized only towards payment of the NCC duty under section 136 of the Finance Act, 2001 on any final product manufactured by the manufacturer.

Insofar as the assessee is concerned the contention urged was that CENVAT credit in respect of NCC duty can be utilized only for payment of NCC duty. But this does not mean that CENVAT credit on basic excise duty cannot be utilized for payment of NCC duty on the final product. Simply put, the contention is that payment of NCC duty through utilization of CENVAT credit on basic excise duty is not prohibited. The question is whether this is permissible or not. According to the Revenue, CENVAT credit on NCC duty can be utilized only for paying NCC duty and CENVAT credit on basic excise duty cannot be utilized for paying NCC duty.

On the above broad facts, the matter was adjudicated before the Commissioner of Central Excise at Dibrugarh and he came to the conclusion that CENVAT credit of duty paid on inputs can be utilized only for payment of duty on the final product as per the second proviso to rule 3(4) but CENVAT credit on any other duty could not be utilized for payment of NCC duty. Accordingly, the said Commissioner confirmed the demand of Rs, 82,07,1257, and passed an order for recovery of NCC duty from the assessee.

Feeling aggrieved, the assessee preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal at Kolkata. The appeal filed by the assessee was registered as Excise Appeal EDM 648/2006. The CESTAT noticed the provisions of rule 3(4) as well as the provisions of rule 3(7) of the CENVAT Credit Rules and held that though credit of NCC duty could be utilized for paying NCC duty only, the restriction would not extend to utilization of credit of duty which is not specifically listed in rule 3(7). The corollary to this argument is that since credit on basic excise duty is not mentioned in rule 3(7), CENVAT credit on basic excise duty could be utilized for payment of NCC duty.

We are in agreement with the view expressed by the CESTAT. In terms of rule 3(1) a manufacturer or producer of a final product is allowed to take CENVAT credit of NCC duty. Since NCC duty is admittedly a duty of excise, rule 3(4) provides that CENVAT credit may be utilized for payment of any duty of excise on any final product. Therefore, CENVAT credit of NCC duty may also be utilized for payment of any duty of excise on any final product in terms of rule 3(4) subject to rule 3(7).

Rule 3(7) limits the utilization of CENVAT credit in respect of NCC duty as also other duties mentioned in rule 3(7)(b). It provides that CENVAT credit in respect of NCC duty and other duties shall be utilized towards payment of duty of excise leviable under various statutes respectively. The use of the word "respectively" in this regard is important inasmuch as it confines the utilization of CENVAT credit obtained to a particular statute and for utilization for payment of duty under that statute only. The converse, however, does not follow. That is to say that merely because CENVAT credit in respect of NCC duty can be utilized only for payment of NCC duty, it does not follow that any other credit of duty cannot be utilized for payment of NCC duty.

This being the position, in our opinion the Commissioner of Central Excise at Dibrugarh was in error in coming to the conclusion that CENVAT credit of basic excise duty cannot be utilized for payment of NCC duty on the final product.

Under the circumstances the second part of the substantial question of law must be answered in the affirmative and it must be held that while CENVAT credit of NCC duty can be utilized under the CENVAT Credit Rules only towards payment of such NCC duty, CENVAT credit obtained from other sources can be utilized for payment of NCC duty on the final product.

The reference is answered accordingly.

We may note that a preliminary objection was raised about the maintainability of the appeal, but in the view that we have taken, it is not necessary to decide that issue.