2011 (6) TMI 541 - AT - Central Excise

Stay application reversal of cenvat credit - clearances made by them of duty free goods - common accounts of input services availed by them which have been used in manufacturing of both dutiable and non-dutiable final products Held that - assessee has already reversed the inadmissible input service credit which is attributable to exempted final product and they have moved an application before the adjudicating authority to certify the facts the assessee is not required to reverse 8/10% of the value exempted final product at the time of removal. Matter remanded back to the adjudicating authority

Summary

Issues involved:
1. Interpretation of Section 73 of Finance Act, 2010 and Rule 6 of CCE 2004 regarding reversal of input service credit for manufacturing dutiable and exempted final products.
2. Applicability of the requirement to reverse 8/10% of the amount of clearance of exempted products.
3. Consideration of the appellant's compliance with reversing inadmissible input service credit attributable to exempted final products.
4. Decision on remanding the matter to the adjudicating authority for further examination.

Analysis:

The judgment by the Appellate Tribunal CESTAT, Mumbai, involved an appeal with a stay application against an order requiring the appellant to reverse 10% of the amount of clearances of duty-free goods due to common accounts of input services used in manufacturing dutiable and non-dutiable final products. The appellant's advocate argued that under Section 73 of the Finance Act, 2010, if an assessee has already reversed inadmissible input service credit attributable to exempted final products and applied for certification from the adjudicating authority, there is no need to reverse 8/10% of the value of exempted final products at the time of removal.

The Tribunal acknowledged the narrow scope of the issue and waived the pre-deposit requirement, proceeding with the final disposal of the appeal. Considering the submissions made, the Tribunal found that if the appellant had correctly reversed the input service credit related to exempted final products and had sought certification from the adjudicating authority, the requirement to reverse 8/10% did not apply. Therefore, the Tribunal decided not to keep the appeal pending and remanded the matter back to the adjudicating authority for verifying whether the appellant had indeed reversed the proportionate input service credit attributable to exempted final products. The adjudicating authority was directed to examine the facts and issue an appropriate order after allowing the appellant a reasonable opportunity to present their case within one month of receiving the Tribunal's order.