2015 (12) TMI 1391 - AT - Central Excise

Reversal of CENVAT Credit - Duty demand u/r Rule 6 (3) - Department has alleged that common Cenvat credit availed input services have been used in or in relation to manufacture of dutiable final product (Carbon Black) and exempted final product (steam and electricity) and therefore in respect of sale of steam and electricity an amount equal to 5%/10% of the sale value would be recoverable under Rule 6 (3) of the Cenvat Credit Rules. The appellant s contention, however, is that the services being used are three type. The first type of services are those which are directly used in or in relation to manufacture of Carbon Black and in respect of such services the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply. Held that - The appellant s plea, however, is that they have reversed the total credit on all the common input services. If this is so, there would be no case for invoking Rule 6 (3) against them. Hon ble Allahabad High Court, which is the Jurisdictional High Court, in the case of Hello Minerals Water Pvt. Ltd. vs. Union of India ALLAHABAD HIGH COURT has held that if the Cenvat credit initially taken is reversed subsequently it would amount to not taking Cenvat credit and same view has been taken by the Tribunal in the case of JCT Ltd. vs. CCE, Jallandhar 2015 (2) TMI 600 - CESTAT NEW DELHI . Therefore if the appellant have fully reversed the credit in respect of common services or in other words not taken any Cenvat credit in respect of the common services there would be no justification for invoking Rule 6 (2) readwith Rule 6 (3) and the duty demand would not be sustainable at all. Without going into the question as to whether the steam and electricity are excisable goods or non-excisable goods, we set aside the impugned order and remand the matter to Commissioner for denovo adjudication. In denovo proceedings, the Commissioner should examine the appellant s plea that the input services are of three types as described above. In respect of the services which are exclusively used for manufacture of Carbon Black and the services covered by Rule 6 (5) in respect of which Cenvat credit has been taken upto 31/3/11 the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply. If in respect of the common input services of third category, the appellant have fully reversed the Cenvat credit, the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply and the demand confirmed under Rule 6 (3) would not be sustainable - Matter remanded back.

Issues Involved:
1. Applicability of Rule 6(3) of the Cenvat Credit Rules, 2004.
2. Classification of steam and electricity as exempted goods.
3. Reversal of Cenvat credit on common input services.
4. Invocation of extended limitation period under Section 11A(1).
5. Quantification of demand and imposition of penalty.

Detailed Analysis:

1. Applicability of Rule 6(3) of the Cenvat Credit Rules, 2004:
The Department contended that the appellant used common Cenvat credit availed services for manufacturing both dutiable (Carbon Black) and exempted (steam and electricity) goods. Therefore, under Rule 6(3) of the Cenvat Credit Rules, 2004, an amount equal to 5%/10% of the sale value of exempted goods was recoverable. The appellant argued that Rule 6(3) should not apply to services exclusively used in manufacturing Carbon Black or those covered under Rule 6(5). The Tribunal agreed with the appellant, noting that Rule 6(3) would not apply to services exclusively used for Carbon Black or those covered by Rule 6(5).

2. Classification of Steam and Electricity as Exempted Goods:
The Department classified steam and electricity as exempted goods, citing that steam is exempt under Notification No. 4/06-CE and electricity falls under sub-heading 27160000 with no specified duty rate. The appellant argued that neither steam nor electricity is excisable. The Tribunal noted that the classification of steam and electricity as excisable or non-excisable goods was not crucial for the decision since the appellant had reversed the Cenvat credit for common input services.

3. Reversal of Cenvat Credit on Common Input Services:
The appellant claimed they had reversed the entire Cenvat credit on common input services like Telecom, IT Services, Audit, Courier Service, and Manpower Supply Services. The Tribunal acknowledged that if the appellant had reversed the credit, Rule 6(3) would not be applicable. The Tribunal cited the Allahabad High Court's decision in Hello Minerals Water Pvt. Ltd. and the Tribunal's decision in JCT Ltd. to support that subsequent reversal of credit amounts to not taking the credit initially.

4. Invocation of Extended Limitation Period under Section 11A(1):
The Department invoked the extended limitation period under Section 11A(1) for issuing the show cause notices. The appellant argued that the extended period was not invokable as the Department had previously treated steam as non-excisable. The Tribunal directed the Commissioner to examine the appellant's plea regarding the extended limitation period during the denovo adjudication.

5. Quantification of Demand and Imposition of Penalty:
The appellant pointed out calculation errors in the demand amounts specified in the show cause notices. The Tribunal noted that the Commissioner should address the quantification issue and the applicability of penalties during the denovo adjudication process.

Conclusion:
The Tribunal set aside the impugned orders and remanded the matter to the Commissioner for denovo adjudication. The Commissioner was instructed to examine the appellant's claims regarding the classification of input services, the reversal of Cenvat credit, and the applicability of Rule 6(3). The Commissioner was also directed to consider the quantification of demand, the question of limitation, and the imposition of penalties during the denovo proceedings.

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