2018 (1) TMI 525 - AT - Central Excise

CENVAT credit - input/input services - whether the cenvat credit is admissible on the input used in the exempted goods which has been exported? - Held that - Rule 5 refund can only be sanctioned if the assessee is entitled for the cenvat credit. Therefore in one hand, the department has sanctioned the refund claim under Rule 5 and on the other hand, they are denying the cenvat credit which is contrary to their own stand - appeal allowed.

Summary

Issues:
- Admissibility of cenvat credit on input used in exempted goods exported
- Time bar on demand for cenvat credit

Analysis:
1. Admissibility of cenvat credit on input used in exempted goods exported:
The main issue in this case was whether the appellant was entitled to cenvat credit on inputs used in the manufacture of Bagasse Board, which was exempted but exported. The appellant argued that since the Bagasse Board was exported, cenvat credit should be allowed under Rule 6(6)(5). The consultant for the appellant highlighted that a refund claim under Rule 5 of Cenvat Credit Rules 2004 had been accepted by the department for the same cenvat credit, indicating the department's acknowledgment of the entitlement to the credit. The appellant also relied on various judgments to support their claim, including the decisions in Drish Shoes Ltd. and Repro India Ltd.

2. Time bar on demand for cenvat credit:
The appellant further contended that the demand for cenvat credit for the period November 2009 to August 2012 was time-barred. They argued that since the department had sanctioned the refund for the same credit and issued the demand notice after a significant delay from the date of the refund sanction, there was no suppression of facts involved. This raised the question of whether the demand was valid within the statutory time limit.

In the final analysis, the Tribunal considered the submissions from both sides and referred to the judgments in Drish Shoes Ltd. and Repro India Ltd., which had settled the issue of cenvat credit on inputs used in exempted goods cleared for export. The Tribunal noted that the department had already sanctioned a refund under Rule 5 for the same cenvat credit, indicating the appellant's entitlement to the credit. As a result, the Tribunal found the impugned order unsustainable and set it aside, allowing the appeal in favor of the appellant. The judgment was pronounced on 30/11/2017.