2016 (8) TMI 381 - AT - Central Excise

Cenvat credit - Whether the appellants are eligible for taking Cenvat credit of 100% on Capital goods in the first year itself - Held that - since the appellants have taken 100% Cenvat credit in the first year itself, whereas in terms of Rule 4(2) of Cenvat Credit Rules, 2004, they were required to avail 50% of the credit in the first year and balance 50% in the subsequent financial year (s). However, the fact that they availed the entire 100% credit in the first year will not make balance 50% as non-available to the appellant. In the case law relied upon by the Ld. Advocate, CCE Vs. Indian Oil Corporation Ltd., the Hon ble Gujarat High Court has dealt the issue in favour of the appellant assessee. It interpreted Rule 4(2) of CCR, 2004, that it is not necessary that the capital goods be put to actual use for the manufacture of final product, only such goods should be in possession and use of the manufacturer of a final product. Rule envisages availability of Cenvat credit to a manufacturer on receipt of capital goods once the goods are received and as long as such goods are in possession and use of the manufacturer of final product. Appeal allowed by way of remand

Summary

Issues:
1. Disallowance of Cenvat credit availed by the appellant during a specific period.
2. Imposition of penalty under Rule 15 (2) of CCR read with Section 11 AC of CEA, 1944.
3. Eligibility of the appellant for taking Cenvat credit of 100% on Capital goods in the first year.

Analysis:
1. The appellant, a manufacturer of Bolts, Nuts, and Screws, availed Cenvat credit of duty/service tax paid on inputs and input services. A show cause notice (SCN) was issued proposing disallowance of credit availed during a particular period, leading to a demand confirmation by the adjudicating authority. The Commissioner (Appeals) upheld the decision, prompting the present appeal.

2. The appellant's advocate argued that the 100% credit on capital goods was availed in the first year due to a mistake, not deliberate intention. He cited a judgment supporting the contention that recovery of interest for such premature credit availment is appropriate. The Revenue's representative, however, supported the disallowance, emphasizing the contravention of provisions and initiation of penalty proceedings post-audit verification.

3. The main issue revolved around the eligibility of the appellant to take 100% Cenvat credit on Capital goods in the initial year. Rule 4 (2) (a) of CCR, 2004, mandates availing 50% credit on capital goods in a given financial year, with the balance in subsequent years. Despite the appellant taking 100% credit initially, the judgment referenced by the appellant's advocate favored the appellant, interpreting the rule as allowing credit availability upon possession and use of capital goods, not necessarily their immediate use in production. Consequently, the matter was remanded for further adjudication based on the cited judgment.

In conclusion, the impugned order was set aside, and the appeal was allowed for remand, emphasizing the interpretation of Cenvat credit rules in light of the referenced judgment for a fair decision.