2018 (2) TMI 612 - AT - Central Excise

Reversal of CENVAT credit - rule 6(3) of CCR 2004 - Held that - reliance placed in the case of ICMC Corporation Ltd v. CESTAT Chennai 2014 (1) TMI 1473 - MADRAS HIGH COURT , where it was held that there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty - demand of duty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues: Incorrect availment of CENVAT credit under notification no. 6/2006 and rule 6(3) of CENVAT Credit Rules, 2004 leading to demand of duty, interest, and penalty.

In this case, the appellant, M/s BASF India Ltd, was alleged to have wrongly utilized &8377; 87,637 in CENVAT credit account following the clearance of goods at a 'nil' rate of duty under notification no. 6/2006 and by recourse to rule 6(3) of CENVAT Credit Rules, 2004 between September 2009 and January 2000. Upon the incorrect availment of the exemption notification being pointed out, the appellant paid duties in full and subsequently took credit for the amount previously debited. The jurisdiction authorities contended that this improper availment could only be rectified by demanding the amount, interest, and imposing a penalty under rule 15 of CENVAT Credit Rules, 2004. The appeal was filed against the confirmation by the Commissioner of Central Excise (Appeals), Mumbai-II in order-in-appeal no. CD/144/Belapur/15 dated 9th February 2015.

During the hearing, the Learned Counsel for the appellant and the Learned Authorized Representative reiterated the orders of the lower authorities. The Learned Counsel relied on a decision of the Hon'ble High Court of Madras in ICMC Corporation Ltd v. CESTAT Chennai [2014 (302) ELT 45 (Mad)], which stated that there was no demand for duty in cases where there was only an account entry reversal without any actual outflow of funds. The decision emphasized that in cases of reversal of credit, there was no unjust enrichment as the assessee was only availing a credit on the duty paid on services rendered. It was also highlighted that the assessee was entitled to reversal under Rule 6(5) of the CENVAT Credit Rules, 2004, for input services. Based on this decision, it was concluded that the demand for duty did not arise, and the impugned order was set aside, allowing the appeal.

In conclusion, the judgment focused on the incorrect availment of CENVAT credit by M/s BASF India Ltd under notification no. 6/2006 and rule 6(3) of CENVAT Credit Rules, 2004. The decision highlighted the legal principles related to account entry reversals and the absence of unjust enrichment in such cases. The judgment ultimately set aside the demand for duty, interest, and penalty, based on the interpretation of the law provided by the Hon'ble High Court of Madras.