2011 (4) TMI 1398 - HC - Central Excise

Demand of duty cenvat credit on exempted input assessee took credit on naphtha, it is exempted from the payment of excise duty - On being pointed out, they proportionately reversed the credit in respect of naphtha Held that - Pro rata reversal credit had been effected for the inputs used in naphtha relating to the clearance for the manufacture of fertilizers - reversal of credit amounts to non-taking of credit - no liability to pay duty - appeal is dismissed.

Summary

Issues:
1. Challenge to Tribunal's order granting benefit to assessee on reversal of proportionate cenvat credit.
2. Entitlement to modvat credit for naphtha.
3. Commissioner's order levying duty on naphtha.
4. Tribunal's decision on the clearance of naphtha and reversal of credit.
5. Introduction of Section 57CCC with retrospective effect.

Analysis:
1. The appeal before the High Court challenged the Tribunal's decision upholding the Commissioner of Central Excise's order granting the assessee the benefit of reversing proportionate cenvat credit before utilization. The revenue contested this decision, leading to the present appeal.

2. The assessee, a Public Sector undertaking involved in refining crude oil and marketing petroleum products, availed modvat credit on inputs used in manufacturing, including naphtha. While most products attracted excise duty, naphtha was exempt. Upon realizing they were not entitled to modvat credit for naphtha, the assessee proportionately reversed the credit. However, the Commissioner imposed duty on naphtha, prompting the assessee to appeal to the Tribunal.

3. The Tribunal, in its ruling, noted that naphtha was cleared following prescribed procedures and that pro rata reversal of credit was done for inputs used in naphtha related to fertilizer manufacturing. It determined that the reversal of credit equated to non-taking of credit, absolving the assessee from duty payment. Consequently, the Tribunal dismissed the revenue's appeal, leading to the current appeal.

4. The transaction in question occurred before 2002, with the subsequent introduction of Section 57CCC, which had retrospective effect. The Tribunal and Courts had acknowledged and applied this provision retroactively. Considering this, the High Court found no merit in the revenue's appeal and consequently dismissed it.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing the correct application of modvat credit rules, the procedural compliance in naphtha clearance, and the retrospective effect of Section 57CCC. The judgment favored the assessee, leading to the dismissal of the revenue's appeal.