2008 (12) TMI 472 - AT - Central Excise

Cenvat/Modvat - Wrong availment of credit, reversal of - inputs - Held that - Even, if the appellant took the credit wrongly, the fact remains that while selling the same goods to Rail Coach Factory, they have paid the duty on the same on higher value and this amounts to reversal of credit taken by them, albeit wrongly. Insisting on reversal again would amount to reversal of the same Cenvat credit more than once. Since, the Cenvat credit is already reversed, there is no question of initiating the proceedings against the appellant for seeking reversal again credit and imposition of penalty - appeal allowed.

Summary

Issues:
- Appeal against order-in-appeal dated 27-8-08 passed by CCE (Appeals), Chandigarh
- Recovery of allegedly wrongly taken Cenvat credit amounting to Rs. 46,140/- and imposition of penalty
- Manufacturing of railway parts and supply to Rail Coach Factory
- Purchase of FRP Door Windows from another unit M/s. Rail Tech
- Taking Cenvat credit of duty paid on FRP door windows
- Payment of duty on higher value while selling goods to Rail Coach Factory
- Department seeking recovery of Cenvat credit on the grounds of inputs not received or used in the factory

Analysis:
The appeal in question was made against the order-in-appeal dated 27-8-08 passed by CCE (Appeals), Chandigarh, which set aside the Assistant Commissioner's order dropping the proceedings initiated against the appellant for the recovery of allegedly wrongly taken Cenvat credit amounting to Rs. 46,140/- and the imposition of a penalty. The Commissioner (Appeals) not only confirmed the demand for Cenvat credit but also imposed a penalty of Rs. 10,000 on the appellant. The appellant, engaged in manufacturing railway parts supplied to Rail Coach Factory, purchased FRP Door Windows from M/s. Rail Tech and supplied them along with railway parts to Rail Coach Factory. However, the appellant took Cenvat credit of duty paid on FRP door windows, which were not used as inputs in their factory for manufacturing finished goods. The department sought recovery of the Cenvat credit on the grounds that the credit was taken for inputs that were neither received nor used in the appellant's factory.

During the hearing, the appellant's counsel argued that since the appellant had already paid duty on the FRP Windows received by them at a higher value, which effectively reversed the Cenvat credit, seeking reversal of the credit again was unjustified. It was contended that accepting the Department's stance would result in the reversal of Cenvat credit for the same inputs twice. On the other hand, the Departmental Representative argued that the goods received were not inputs for the appellant, had not been used in their factory, and were directly supplied to Rail Coach Factory, constituting a trading activity. Therefore, the appellant was deemed ineligible for Cenvat credit, which was rightly denied.

Upon careful consideration of the submissions from both sides, it was noted that even if the appellant had wrongly taken the credit, they had paid duty on the same goods at a higher value when selling them to Rail Coach Factory, effectively reversing the credit taken. Insisting on a further reversal would amount to reversing the same Cenvat credit more than once. As the Cenvat credit had already been reversed, there was no justification for initiating proceedings against the appellant for another reversal of credit and imposing a penalty. Consequently, the impugned order was deemed unsustainable and was set aside, allowing the appeal in favor of the appellant.