2014 (3) TMI 238 - AT - Central Excise

Denial of CENVAT Credit - Violation of Rule 3(7)(a) of the CENVAT Credit Rules, 2004 - Notification No.23/2003-CE dated 31.3.2003 - Held that - there is a factual dispute on the availment of the credit on the basis of some invoices wherein the applicant s contention that EOU has paid the duty under Sl. No. 2 of the said Notification which is required to be examined by the original authority - Accordingly, the order passed by the Commissioner (Appeals) insofar as the denial of credit on CVD and education cess and SHE cess on CVD is set aside and the matter is remanded to the original authority to decide afresh after considering the submissions of the appellant - Decided in favour of assessee.

Summary

Issues:
1. Delay in filing appeals
2. Denial of CENVAT credit under Rule 3(7)(a) of the CENVAT Credit Rules, 2004

Analysis:
1. Delay in filing appeals:
The applicant filed applications to condone a 10-day delay in filing the appeals. The delay was attributed to filing ROM before the Commissioner (Appeals). The Tribunal found sufficient reason to condone the delay and allowed the applications after considering submissions from both sides. The appeals were taken up together for disposal due to arising from a common order.

2. Denial of CENVAT credit under Rule 3(7)(a) of the CENVAT Credit Rules, 2004:
The applicant, engaged in manufacturing plastic crates and PET pre-forms, procured inputs from a 100% EOU under Section 3 of the Central Excise Act, 1944. The denial of CENVAT credit was based on Rule 3(7)(a) of the CENVAT Credit Rules, 2004, alleging a violation of the credit formula. The dispute centered on whether the EOU paid duty under Sl. No. 1 or Sl. No. 2 of Notification No. 23/2003-CE. The appellate authority's decision on the credit availment was challenged, with the appellant arguing that EOU paid duty under Sl. No. 2, contrary to the Commissioner (Appeals)'s view that it was under Sl. No. 1.

The learned AR contended that the original authority's finding of duty payment under Sl. No. 1 was unchallenged before the Commissioner (Appeals), who had already granted CENVAT credit on certain components. The Tribunal noted a factual dispute regarding duty payment under the notification and remanded the matter to the original authority for reexamination. The order denying credit on CVD and related cess was set aside, emphasizing the need for a fresh decision after considering the appellant's submissions. The appellant was granted a reasonable opportunity to be heard in this regard. The appeals were allowed by way of remand, with the stay applications disposed of and COD applications allowed.