2018 (11) TMI 79 - AT - Central Excise

MODVAT Credit - Sulphuric acid is cleared partly on payment of duty and partly without payment of duty - demand of duty of 8% of the value of the Sulphuric acid cleared without payment of duty - Held that - After the decision of the Tribunal directing the appellant to reverse the entire credit in respect of Vanadium Pentaoxide, the appellant reversed the entire credit on Vanadium Pentaoxide amounting to ₹ 54,533/- - the High Court has also not disturbed the said order of the Tribunal. Once the appellant has reversed the entire credit as per the direction of the Tribunal then there remains no demand against the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Demand of duty on Sulphuric acid cleared without payment of duty
- Availing MODVAT credit on Vanadium Pentaoxide
- Reversal of CENVAT credit on Vanadium Pentaoxide
- Department's appeal before the High Court
- Opportunity granted by the High Court to avail the benefit of Finance Act, 2010
- Commissioner's decision on reversal of duty for specific periods

Analysis:

The appeal involved challenging an order passed by the Commissioner of Central Excise, as directed by the High Court of Karnataka. The appellant, a manufacturer of Zinc, Sulphuric Acid, and Cadmium, availed MODVAT credit on duty paid for inputs and capital goods. The issue arose when the Department proposed a demand for duty on Sulphuric acid cleared without payment of duty, specifically focusing on Vanadium Pentaoxide. The appellant reversed the CENVAT credit amounting to ?54,533 as directed by the Tribunal. Subsequently, the Department issued another show cause notice (SCN) for a different period, which was also confirmed by the Commissioner. The Tribunal modified the order, setting aside the penalty. The High Court disposed of all appeals together, granting the appellant an opportunity to benefit from the Finance Act, 2010.

During the proceedings, the appellant argued that the impugned order was not sustainable in law as the entire credit on Vanadium Pentaoxide had been reversed. The counsel contended that once the credit was reversed, no demand should remain. The appellant also highlighted that for the subsequent period, the duty had already been paid based on the Tribunal's direction. It was emphasized that the Department should not exceed the scope of the SCN or the Tribunal's order, which had not been challenged by the High Court.

Upon hearing both parties and examining the records, the Judicial Member found that after the Tribunal's directive to reverse the credit on Vanadium Pentaoxide, the appellant complied by reversing the entire credit amount. Notably, the High Court did not intervene in the Tribunal's decision. Consequently, the Judicial Member concluded that there was no valid demand against the appellant once the credit had been reversed. Therefore, the impugned order was deemed unsustainable in law, leading to its setting aside and allowing the appellant's appeal.

In the final judgment pronounced on 31/10/2018, the Judicial Member provided a comprehensive analysis of the case, emphasizing the importance of adhering to the Tribunal's directives and the legal principles governing duty demands and credit reversals in excise matters.