2013 (9) TMI 57 - AT - Central Excise

Return of Cenvat credit - Commissioner confirmed such repayment of credit along with interest - Held that - appellant had already re-debited the Cenvat credit in the year 2004. As such, subsequent procedure prescribed in the Finance Act, 2005 cannot be held to be applicable to the assessee s case. The Revenue, having already issued show cause notice could not have issued a fresh notice for the same cause again - Decided against assessee.

Summary

Issues:
Repayment of cumulated credit prior to 1.4.2000 and subsequent recovery procedure under Section 88 of the Finance Act, 2004.

Analysis:
The judgment deals with the issue of repayment of cumulated credit accrued by the appellant prior to 1.4.2000 and the subsequent recovery procedure under Section 88 of the Finance Act, 2004. The appellant, engaged in the manufacture of tyres and tubes, availed Cenvat credit of AED (GSI) amounting to Rs.79,8667/- between December 1997 to March 2000. Proceedings were initiated against the appellant through a show cause notice dated 11.10.03 for the recovery of the credit accumulated before 1.4.2000. The appellant did not dispute the payment and repaid the credit on 18.10.2004. The Commissioner confirmed the repayment along with interest.

Regarding the subsequent recovery procedure under Section 88 of the Finance Act, 2004, the appellant's advocate submitted that a special procedure was laid down as per the amendment by Finance Act 2005, prescribing the recovery procedure and extending the installment facility to the assessee. It also mandated the Central Excise officer to determine the interest separately on the credit utilized for paying Central Excise duty. The appellant contended that the Revenue did not follow this procedure. However, the Tribunal found no merit in this argument. The show cause notice had already been issued in 2003, and the appellant had re-debited the Cenvat credit in 2004. Therefore, the subsequent procedure under the Finance Act, 2005 was deemed inapplicable to the appellant's case. The Tribunal held that since the show cause notice had already been issued, a fresh notice for the same cause could not be given. Additionally, the determination of interest in accordance with Section 11AB was found to be legally sound. Consequently, the Tribunal upheld the impugned order and dismissed the appeal.

In conclusion, the judgment clarifies the legal position regarding the repayment of cumulated credit prior to 1.4.2000 and the subsequent recovery procedure under Section 88 of the Finance Act, 2004. The Tribunal's decision emphasizes the importance of following the prescribed procedures and upholding the legal provisions while dealing with such matters.