2019 (5) TMI 1990 - AT - Central Excise

Demand of CENVAT credit utilized - balance credit of 2004 sought to be denied on the strength that sub Rule (3) of Rule 11 of Cenvat Credit Rules, 2004 - HELD THAT - It is seen that sub-rule (3) of Rule 11 of Cenvat Credit Rules, 2004 was introduced vide Notification No. 10/2007 (NT) dated 01.03.2007 and thus cannot be made applicable retrospectively. Moreover, the said Rule applies only when the final product is exempted absolutely . In the instant case, the product manufactured by the appellant is fabric and yarn which is not exempt absolutely. Therefore, in these circumstances, this Rule is not applicable. There are no merit in the impugned orders and the same are set-aside. Appeals are allowed.

Summary

Issues: Alleged wrong utilization of Cenvat credit, admissibility of Cenvat credit on transfer of machinery, denial of balance credit based on Rule 11 of Cenvat Credit Rules, 2004, duplication of demand, lapse of credit under Rule 11.

In this case, the appellant filed appeals against the alleged wrong utilization of Cenvat credit. The proceedings revolved around the disputed utilization of credit, particularly focusing on the balance credit sought to be denied based on sub Rule (3) of Rule 11 of Cenvat Credit Rules, 2004. The appellant had opted for availing Notification Nos. 29/2004-CE and 30/2004-CE in 2004, and had reversed the credit in respect of inputs and finished goods while holding the rest in balance. The appellant also transferred plant and machinery from one location to another, which was a subject of contention regarding the admissibility of Cenvat credit. The Tribunal had previously considered the admissibility of credit on machinery transfer, holding it as admissible but remanding the matter for further verification.

The primary issue in the case was the denial of balance credit under Rule 11 of Cenvat Credit Rules, 2004. The appellant argued that the sub Rule (3) of Rule 11, introduced in 2007, was not applicable to them as they had opted for availing specific notifications in 2004. The Rule mandated lapsing of credit only if the final product was exempted absolutely, which was not the case for the appellant's products. Therefore, the Rule was deemed inapplicable in this scenario. The appellant also contended that the demand for credit was duplicative, as it had already been challenged and settled in a previous case related to plant transfer, which had been remanded for further adjudication.

Upon considering the submissions, the Tribunal found that the demands for Cenvat credit utilization, interest, and penalty were based on grounds that were previously settled or inapplicable. The demand related to the transfer of plant from one location to another had already been addressed and remanded, making the subsequent demand on the same grounds improper. Additionally, the allegation regarding the lapse of credit under Rule 11 was dismissed as the Rule did not apply retroactively and only to products exempted absolutely, which was not the case for the appellant's products. Consequently, the Tribunal set aside the impugned orders and allowed the appeals in favor of the appellant.