9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (3) TMI 448 - AT - Central Excise100% EOU - Since, the appellant had availed Cenvat credit of the CVD amount as per the formula prescribed under N/N. 10/2008-C.E., dated 01.03.2008, the department has objected to such availment of credit and confirmed the adjudged demand - Held that - the appellant cannot plead that the N/N. 48/2008-C.E.(N.T.), dated 05.12.2008, issued subsequently, providing the formula for Cenvat credit will be applicable with retrospective effect. Further, the said notification nowhere prescribed that the same will have the retrospective operation - the law is well settled that in absence of any express provision contained in notification, ordinarily it cannot be presumed that same is retrospective in nature - the formula prescribed in notification dated 05.12.2008 will be effective prospectively, from its date of publication in the Official Gazette. Since the appellant has taken Cenvat credit due to wrong interpretation of the statutory provisions, it cannot be said that it had indulged into the activities of fraud, collusion etc. Therefore, the provisions of Rule 15 of the CCR 2004 cannot be invoked against the appellant for imposition of penalty. Appeal allowed in part.
Issues:
- Appeal against Cenvat Credit demand and penalty imposed by the Commissioner of Central Excise, Jaipur-II. - Interpretation of Rule 3(7)(a) of the Cenvat Credit Rules, 2004 regarding availing Cenvat credit on inputs from EOUs. - Retrospective effect of amendments to Rule 3(7)(a) in light of conflicting notifications. - Applicability of Cenvat Credit Rules to domestic manufacturers availing credit on inputs from EOUs. - Invocation of Rule 15 of the Cenvat Credit Rules, 2004 for imposing penalty. Analysis: 1. The appeal challenged the order confirming a Cenvat Credit demand and imposing a penalty on the appellant. The appellant, engaged in cement manufacturing, procured pet coke from an EOU, M/s. Reliance Industries Ltd., based on notifications exempting excisable goods from EOUs. The dispute arose due to amendments in notifications affecting the CVD component and the corresponding Rule 3(7)(a) of the Cenvat Credit Rules, 2004. 2. The appellant argued for retrospective application of the Rule amendment, citing judgments supporting retrospective effect of amendments. The Revenue contended that the Rule must be strictly adhered to and amendments apply prospectively. The Tribunal examined the case records and the applicability of notifications exempting EOUs and the Cenvat Credit Rules to the appellant as a domestic manufacturer. 3. The Tribunal determined that the appellant, not being an EOU, should comply with Cenvat Credit Rules and the applicable notifications. As the appellant did not follow the correct formula under Rule 3(7)(a) while availing Cenvat credit, the Tribunal held that the subsequent Rule amendment did not have retrospective effect unless expressly stated in the notification. 4. The Tribunal distinguished the appellant's case from the judgments cited, emphasizing that the notifications were specific to EOUs and not domestic industries. It concluded that the Rule amendment was not clarificatory and did not retroactively apply to the appellant. The Tribunal found support in a Delhi High Court judgment, stating that a clarificatory amendment should be evident in the original notification. 5. Regarding the penalty under Rule 15 of the Cenvat Credit Rules, 2004, the Tribunal noted that the appellant's actions were due to misinterpretation rather than fraudulent intent. Consequently, the Tribunal ruled against invoking Rule 15 for imposing a penalty on the appellant. 6. In the final decision, the Tribunal dismissed the appeal concerning the Cenvat credit and interest demand but partially allowed it by setting aside the penalty imposed on the appellant. The judgment was pronounced on 12.01.2018, providing a detailed analysis of the issues raised and the legal interpretations applied.
|
