2017 (12) TMI 937 - AT - Central Excise

CENVAT credit - Manufacture - Polymer Modified Bitumen (PMB) - Department was of the view that since the product PMB was not a manufactured product, there is no need to pay the duty on the same. But a view was taken that the appellant had wrongly availed the cenvat credit on input and input services attributable to this product. Held that - the appellant has paid the duty on the product PMB inspite of the fact that the Apex Court has held that it has not been manufactured. It is settled position of law that once duty has been paid it is to be considered as a reversal of the cenvat credit availed as has been held by the Hon ble Gujarat High Court in Creative Enterprises 2008 (7) TMI 311 - GUJARAT HIGH COURT . Denial of credit at the time of merger of M/s TVBILP with the appellant - only ground raised in the SCN is that the permission of the jurisdictional Dy. Commissioner was not taken as required under Rule 10(3) of the CCR - Held that - the appellant is in a position to satisfy the Deputy Commissioner on the requirement of Rule 10(3). When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue denovo - matter on remand. CENVAT credit on PMB - Revenue was of the view that since the product PMB is not a manufactured product, no cenvat credit would be admissible on the inputs and input services used in the production of such goods - Held that - the stipulation in Rule 6(3) is a mechanism to expunch a part of the credit which is attributable to the goods which do not suffer duty, the adjudicating authority s view that the entire credit taken should be expunged is perverse - It is also seen that an Explanation-1 has been inserted in Rule 6 to the effect that for the purpose of this rule, exempted goods shall include non-excisable goods cleared from the factory for a consideration - there is no justification for demanding reversal of the entire credit taken - Since the matter is being remanded, the adjudicating authority is also directed to verify the amount actually reversed and to requantify the overall demand. Appeal allowed in part by way of remand.

Summary

Issues:
1. Dispute regarding dutiability of Polymer Modified Bitumen (PMB) and cenvat credit availed on common inputs.
2. Denial of credit balance transfer from merged unit M/s TVBIPL due to lack of permission under Rule 10 of Cenvat Credit Rules.
3. Demand raised by Revenue for reversal of cenvat credit on inputs and input services used in PMB production.

Issue 1: The appellant manufactured Bitumen Emulsion and PMB during the disputed period. While duty payment on Bitumen Emulsion was undisputed, PMB's dutiability was contested due to a Supreme Court ruling. The appellant availed cenvat credit on common inputs for both products. The department argued for total reversal of credit due to PMB not being a manufactured product. The appellant claimed duty paid on PMB should offset the demand. The Tribunal held that once duty is paid, it constitutes reversal of cenvat credit, citing relevant case laws.

Issue 2: The denial of credit balance transfer from the merged unit was based on Rule 10(3) requiring permission from the Deputy Commissioner. The appellant argued that this rule came into effect after the merger, and they could satisfy the conditions. The Tribunal remanded the matter to verify compliance with Rule 10(3) and provide a hearing opportunity to the appellant.

Issue 3: The Revenue demanded reversal of cenvat credit on inputs for PMB production, citing PMB not being a manufactured product. The appellant had already reversed 6% of PMB value as per Rule 6(3). The Tribunal found the demand for total credit reversal unjust, as the appellant had complied with the 6% rule. An Explanation-1 in Rule 6 clarified exempted goods. The Tribunal directed the adjudicating authority to verify the reversed amount, reevaluate the demand, and decide penalties accordingly.

In conclusion, the appeal was partly allowed, with the Tribunal addressing each issue comprehensively and providing directions for further assessment and compliance verification.