2013 (8) TMI 230 - AT - Central Excise

Cenvat credit - Education cess - Following the decision in case of EMCURE PHARMACEUTICALS LTD. (2008 (1) TMI 147 - CESTAT, MUMBAI) that non-obstante clause in Rule 3(7)(a) of CCR, 2004 is applicable in respect of BED paid u/s 3 and COMMISSIONER OF CENTRAL EXCISE. DAMAN Versus M/s BHIM POLYFAB INDUSTRIES 2013 (2) TMI 417 - CESTAT AHMEDABAD - Decided in favour of assessee.

Summary

Issues Involved:
1. CENVAT Credit availed by the appellant disputed by the Department.
2. Reversal of CENVAT Credit on an invoice raised by EOU.
3. Interest imposed on the wrongly taken amount by the appellant.
4. Penalty imposed on the appellant for the calculation mistake.

Analysis:

Issue 1: CENVAT Credit Dispute
The issue in this case revolves around the CENVAT Credit availed by the appellant, which was disputed by the Department. The appellant had availed CENVAT Credit for Excise duty, Education Cess, and Higher Secondary Education Cess. The appellant acknowledged a calculation error and deposited a certain amount, which was not contested. However, the Department denied the balance amount of CENVAT Credit. The appellant argued that a previous decision in the case of Bhim Polyfab Industries supported their position. The Additional Commissioner supported the lower authorities' findings on the matter.

Issue 2: Reversal of CENVAT Credit
The crux of the matter was the reversal of CENVAT Credit on an invoice raised by an EOU. The Department contended that the appellant should have recalculated the education cess amount to claim the credit. The Tribunal referred to a previous case involving a similar issue with a product purchased from an EOU. The Tribunal highlighted that during the relevant period, specific rules did not allow for availing CENVAT Credit of Education Cess. Relying on precedent, the Tribunal set aside the impugned order and allowed the appeal regarding the ineligibility of CENVAT Credit for Education Cess.

Issue 3: Interest Imposition
Regarding the interest imposed on the wrongly taken amount by the appellant, the Tribunal directed the appellant to reverse the interest based on their own calculation and deposit it with the lower authorities. This decision aimed to rectify the financial aspect of the case while addressing the interest implications of the erroneous CENVAT Credit.

Issue 4: Penalty for Calculation Mistake
The penalty imposed on the appellant due to a calculation error made by the clerical staff was set aside. The Tribunal considered the consistent plea of the appellant that the error was unintentional and attributed to a mistake in calculation. Consequently, the penalty on the amount in question was waived, emphasizing the clerical error as the reason behind the penalty reversal.

In conclusion, the Tribunal's judgment addressed the various issues raised by the appellant concerning CENVAT Credit, reversal of credit, interest imposition, and penalty for a calculation mistake. The decision provided clarity on the legal aspects involved, citing relevant precedents and rules to support the final disposition of the appeal.