2015 (7) TMI 626 - AT - Central Excise

Denial of CENVAT credit - Goods received from 100% EOU - The Department is of the view that since the goods had been received by the appellant are from a 100% EOU, they were required to determine the quantum of Cenvat credit available to them in terms of the formula prescribed in Rule 3 (7) (a) of the Cenvat Credit Rules, 2004. - Held that - it is seen that in terms of the Commissioner (Appeals) s order the appellant were also eligible for cenvat credit of Special Additional Customs Duty (SAD) paid on by the goods, while admittedly, the appellant have not taken the cenvat credit of SAD, and if they are eligible for SAD credit and its quantum is considered, the quantum of excess credit alleged to have been taken may come down, It is also the appellant s plea is that there is no suppression of any facts on their part and hence longer limitation period is not available to the departments. But no findings on this point has been given by the Commissioner (Appeals), probably because the matter was decided ex-parte. In view of this, the impugned order is set aside - Matter remanded back - Decided in favour of assessee.

Issues:
1. Cenvat credit availment by the appellant from a 100% EOU.
2. Determination of quantum of Cenvat credit as per Rule 3 (7) (a) of Cenvat Credit Rules, 2004.
3. Confirmation of Cenvat credit demand by the Joint Commissioner.
4. Appeal to Commissioner (Appeals) against the Joint Commissioner's order.
5. Commissioner (Appeals) decision on Cenvat credit demand post 17.04.2009.
6. Ex-parte order by the Commissioner (Appeals).
7. Appeal against the Commissioner (Appeals) order.
8. Waiver of pre-deposit and final disposal of the matter.
9. Arguments presented by both sides regarding the Cenvat credit availment.
10. Lack of findings on limitation in the Commissioner (Appeals) order.
11. Remand of the matter to the Commissioner (Appeals) for reconsideration.

Analysis:
1. The case involves the appellant, a cement manufacturer, receiving petroleum coke from a 100% EOU and availing Cenvat credit during a specific period. The Department contended that the appellant should have determined the Cenvat credit as per Rule 3 (7) (a) of Cenvat Credit Rules, 2004, based on the goods received from the EOU.

2. The Joint Commissioner confirmed a Cenvat credit demand against the appellant, which led to an appeal to the Commissioner (Appeals). The Commissioner (Appeals) modified the Cenvat credit demand post 17.04.2009, reducing the amount but issued an ex-parte order due to the appellant's non-appearance during the hearing.

3. The appellant argued that they had not taken excess Cenvat credit as they had not considered the special additional custom duty (SAD) credit, which the Commissioner (Appeals) had deemed admissible. The appellant also raised concerns about the lack of findings on limitation in the Commissioner (Appeals) order.

4. The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision after hearing the appellant and considering their arguments on limitation and SAD credit availability. The Tribunal emphasized the importance of addressing these issues for a comprehensive decision.

5. The Tribunal waived the pre-deposit requirement and proceeded with the final disposal of the matter after considering arguments from both sides. The case highlights the significance of proper determination of Cenvat credit and the necessity for detailed findings on all relevant aspects, including limitation and admissibility of specific credits, in appellate decisions to ensure a fair outcome.

← Previous Next →