- (1.) Heard Sri Nishant Mishra, learned counsel for the assessee and Sri Parv Agarwal, learned counsel for the Department.
(2.) This is a Central Excise Appeal filed under Section 35G of Central Excise Act, 1944 against the order dated 13-5-2011, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/3304/09-Ex(DB) [2011 (273) E.L.T. 289 (Tri.-Del.)]. The questions of law sought to be answered are as under :- "1. Whether the incentives granted to the appellant permit them to collect excise duty, more than they had themselves paid, from their customers, if they collected by way of excise more than what they had paid, then by virtue of Section 11D of Central Excise Act, 1944. Were they bound to deposit that amount with the Govt.? 2. Whether the party should not be vigilant or even be careful in their act and nature of business as per the provisions of law?"
(3.) The questions involved in the present case have been answered by a Division Bench's decision of the Uttarakhand High Court reported in 2015 (319) E.L.T. 641, Commissioner of Cus. and C. Ex., Meerut-I v. APCO Pharma Ltd. In Para Nos. 12, 13, 14, 15 and 16 of the said decision, the Court has taken a view that a manufacturer obtains credit for the Excise duty paid on raw material to be used by him in the production of an excisable product immediately and there is no provision in the Rules which provide for a reversal of the credit by the excise authorities. Paras 12 and 13 of the said judgment are quoted hereunder :- "12. Upon hearing the learned counsel for the parties, the Court is of the view that the scheme of Cenvat Credit Rules makes it apparently clear, especially Rule 4, that Cenvat credit in respect of inputs is required to be taken immediately on receipt of the inputs in the factory of the manufacturer, that is to say, that the Cenvat credit is required to be taken on receipt of the inputs and not at the time when the final product is manufactured. All that the Department is required to ensure is, that the Cenvat credit taken by the assessee at the time of the receipt of the inputs is for the manufacture of the final product, on which Excise duty is payable. If the excisable duty is withdrawn subsequently, or the final product becomes exempted from payment of Excise duty by means of a notification, the Cenvat credit so taken and utilized cannot be reversed nor can the Department insist that the Cenvat credit should be reversed in view of Rule 6(1) of the Rules of 2002. 13. In our view, Rule 6 is applicable at the stage when inputs are received in the factory of the manufacture and if the inputs are received for the manufacture of a product, on which excise duty is payable, then a valid Cenvat credit is available to a manufacturer. Consequently, Rule 6 would not apply. Even Rule 9(2) would not apply for reversing a valid Cenvat credit where subsequently the inputs have been used for manufacture of the same product which has been become exempted from payment of excise duty by means of a subsequent notification. The reason is clear that there is no provision for reversal of a Cenvat credit. This view of ours is fortified by a decision of the Supreme Court in Dai Ichi Karkaria's case (supra), wherein the Supreme Court, after considering the scheme of the Cenvat Credit Rules, held :" ;