2017 (8) TMI 150 - AT - Central Excise

CENVAT credit - procurement of capital goods from 100% EOU - lower authorities held that the appellants are not eligible to take credit of basic custom duty as the same is not one of the listed duties in terms of Rule 3 of CCR 2004 - Held that - There is no provision to take credit of basic customs duty though the same would have been part of aggregate duty paid by EOU at the time of clearance of capital goods to the appellants - The second proviso is inserted under Rule 3 (7) (a) of the CCR w.e.f. 7.9.2009 vide notification 22 of 2009 CE(NT). It makes the position clear regarding credit availability in the present case - credit not allowed. Penalty - Held that - there is no reason for imposition of penalty on the appellant for availing such credit. The issue involved is one of interpretation of the legal provisions of technical nature. The credits availed were reflected in the records as well as returns filed by the appellant - penalty imposed on the appellants is set aside. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
Dispute over Cenvat Credit eligibility for duty paid on capital goods received from 100% EOU. Imposition of penalty on the appellant for availing the credit.

Analysis:
1. The appeal challenged the denial of Cenvat Credit by the lower authorities regarding duty paid on capital goods received from 100% EOU. The lower authorities held the appellant ineligible for credit of basic custom duty as it was not listed under the Central Credit Rules, 2004. This denial led to the initiation of proceedings against the appellant and imposition of a penalty equal to the denied credit.

2. The appellant argued their eligibility for the credit based on the duty paid by the EOU under the Central Excise Act, 1944, which was collected as Central Excise duty. The appellant contended that the credit was rightfully availed and cited a Tribunal decision in Molex India (P) 2017, affirmed by the Supreme Court in 2017, to support their claim.

3. The appellate tribunal analyzed the relevant provisions under the Cenvat Credit Rules, 2004, particularly the second proviso under Rule 3(7)(a). This proviso specified that only additional duty (CVD) was eligible for Cenvat Credit in cases like the present one. The tribunal noted that the decision in Molex India Pvt Ltd did not apply to the current case, as it did not consider the implications of the proviso inserted in 2009. Therefore, the tribunal found no merit in the appellant's appeal regarding the credit eligibility.

4. Despite dismissing the appeal on merit, the tribunal found no justification for imposing a penalty on the appellant. The tribunal considered the issue to be a matter of interpreting technical legal provisions, with the credits in question being duly reflected in the records and returns filed by the appellant. Consequently, the tribunal set aside the penalty imposed on the appellant.

5. In conclusion, the tribunal upheld the denial of Cenvat Credit but modified the order by removing the penalty imposed on the appellant. The appeal was dismissed on merit, and the impugned order was altered only in terms of the penalty. The decision was pronounced in court on 16.06.2017.