2009 (7) TMI 1309 - AT - Central Excise

Summary

Issues involved:
The issues involved in the judgment are the clearance of boilers without payment of duty, availing CENVAT credit on input services, invocation of Rule 6(3)(b) of the CENVAT Credit Rules 2004, demand for 10% of the net sale price of exempted goods, interest levied, and the appeal by the assessee.

Clearance of Boilers without Payment of Duty:
During the period in dispute, the appellants had cleared boilers without payment of duty to BARC, Vishakapatnam, and Bombay. They had also availed CENVAT credit on some input services without maintaining separate accounts for these services. The Revenue invoked Rule 6(3)(b) of the CENVAT Credit Rules 2004 to demand 10% of the net sale price of the exempted goods and levied interest but did not impose any penalty. The appeal was made by the assessee against this decision.

Decision and Reasoning:
The Tribunal considered the submissions from both sides. It was noted that the assessee had reversed only a portion of the credit taken initially. However, the assessees claimed that they had since reversed the entire credit amount to which they were not eligible. Referring to previous decisions, including the Tribunal's decision in Mount Mettur Pharmaceuticals and the Hon'ble Gujarat High Court's decision in CCE Vs. Maize Products, it was held that the demand for 10% of the net sale price of the exempted goods is not sustainable if the entire credit has been reversed. The case was remanded to the adjudicating authority for verification of the claim that the entire credit had been reversed and to determine the liability for interest based on the credit balance in the account (RG 23A). Fresh orders were to be passed after providing the assessees with a reasonable opportunity to present their case.

Conclusion:
The appeal was allowed by way of remand for further verification and proceedings.