2009 (10) TMI 753 - AT - Central Excise

Summary

Issues Involved: Denial of credit of NCCD on rejected goods, applicability of precedent decision on credit utilization.

Issue 1: Denial of credit of NCCD on rejected goods

The appellants received POY, cleared by them on payment of duty, back to their factory as it was rejected by customers. The department denied credit of Rs. 17,273/- (NCCD) on the grounds that since the final products did not attract NCCD, the credit taken cannot be used for any purpose. An equal amount was also imposed as a penalty. The question was whether the appellants could take credit for the duty paid on the rejected goods.

Analysis: The judge found that the issue of whether the appellant could use the credit was not relevant. The crucial consideration was the availability of the credit. The judge noted that a precedent decision of the Tribunal dated 31-7-2009 covered the issue. The stay petition was allowed unconditionally, indicating that the issue was already addressed in the precedent decision. With the consent of both sides, the appeal itself was taken for a final decision.

Issue 2: Applicability of precedent decision on credit utilization

The judge emphasized that taking credit and utilizing it are distinct aspects. Even if the credit cannot be used due to the exemption of final products, the appellants should not be denied the benefit of taking the credit to which they are entitled. The learned advocate for the appellants argued that the POY received after rejection had suffered NCCD, and therefore, the appellants should be allowed the credit. The judge found no merit in the impugned order and set it aside.

Analysis: The judge clarified that the distinction between taking credit and using it is crucial. As the rejected goods had already incurred NCCD, the appellants were entitled to the credit, irrespective of whether it could be utilized. The judge's decision was based on the principle that the appellants should not be deprived of the admissible credit due to the exemption of final products from NCCD.

In conclusion, the judgment by the Appellate Tribunal CESTAT AHMEDABAD addressed the denial of credit of NCCD on rejected goods and the applicability of a precedent decision on credit utilization. The judge emphasized the distinction between taking credit and utilizing it, ultimately ruling in favor of the appellants and setting aside the impugned order.