2018 (2) TMI 525 - AT - Central Excise

CENVAT credit - Rule 16 of CER 2002 - Since, the duty paid products brought back by the appellants were time expired products in terms of Pesticides Rule, 1971 and cannot be put to reprocessing, the credit availed is denied - Held that - Admittedly, the appellants cannot reprocess the returned goods due to statutory regulations governing pesticides - there can be no allegation of suppression or fraud in availing the credit, on their own returned goods on which they have discharged originally the Central Excise duty. Considering that the full reversal of ineligible credit along with interest has been made by the appellant well before the issue of notice, the case could have been closed without issue of notice. The period of availment of irregular credit being longer than one year by itself will not bar the closure of the proceedings. While upholding the reversal of credit with interest, no further proceedings are required - the penalty imposed on the appellant are set aside - appeal allowed in part.

Summary

Issues:
Imposition of penalty on appellant for availing irregular credit on returned goods.

Analysis:
The case involved the appellant, engaged in manufacturing pesticides liable to Central Excise duty, who had received duty paid final products back into their factory between February 2007 and March 2009. The appellant had taken credit of duty already discharged on these products in their Cenvat account. However, as the returned products were time expired and could not be reprocessed due to statutory regulations, the credit availed by the appellant was deemed ineligible under Rule 16 of the Central Excise Rules, 2002. The appellant voluntarily reversed the full credit amount along with interest upon being informed of the ineligibility, and this reversal was completed in July and November 2009. Despite this, a show cause notice was issued in April 2010 to demand recovery of the ineligible credit and to impose a penalty under Section 11AC read with Rule 15 of the Cenvat Credit Rules, 2004.

The appellant contended that they had complied with the reversal of credit upon notification by the Department and that the matter should have been closed under Section 11(2B) of the Act since the full amount of credit found to be ineligible had been repaid. They argued that there was no fraudulent intent or suppression of facts as the availed credit was duly recorded in their registers and monthly returns filed with the Department. On the other hand, the Revenue argued that the appellant had been availing irregular credit for some time, and the penalty proceedings were justified based on detailed investigation revealing the ineligibility of credit under Rule 16.

After hearing both parties and examining the records, the Tribunal found that the appellant had indeed availed credit on returned goods that could not be reprocessed due to expiry, making the credit ineligible under Rule 16. However, the Tribunal noted that there was no suppression or fraud involved as the credit availed was transparently recorded in the appellant's records and returns. Given that the appellant had voluntarily reversed the ineligible credit along with interest before the issuance of the notice, the Tribunal held that the case could have been closed without further proceedings. The Tribunal emphasized that the period of irregular credit availed being longer than a year did not bar the closure of proceedings unless the conditions of the proviso to Section 11A(1) were met, which were absent in this case. Therefore, the Tribunal set aside the penalty imposed on the appellant and allowed the appeal to that limited extent only.