2018 (11) TMI 732 - AT - Central Excise

Reversal of CENVAT Credit - all the goods falling under the First Schedule to the Customs Tariff Act, 1975 were exempted from payment of whole of the Education Cess and Secondary Higher Education Cess - time limitation - Held that - The appellants have taken the credit on the basis of valid invoices issued by the dealer and Department cannot question the taking of the credit at the receivers end even if some irregularities are there at the end of the dealer. On merit, the impugned order is not sustainable and therefore without going into the question of limitation, the demand is set aside - appeal allowed - decided in favor of appellant.

Issues:
1. Rejection of appeal by Commissioner(Appeals) regarding irregular cenvat credit on Education Cess and Secondary Higher Education Cess.
2. Sustainability of impugned order on the basis of limitation and merits.
3. Denial of CENVAT credit on education cess and secondary higher education cess.
4. Validity of appellant's claim based on invoices issued by M/s. Dow Chemicals International Pvt. Ltd.
5. Bar on substantial demand due to limitation.
6. Allegations of suppression of facts with intent to evade payment of duty.

Analysis:

1. The appeal was filed against the Commissioner(Appeals) order rejecting the appellant's appeal regarding irregular cenvat credit on Education Cess and Secondary Higher Education Cess. The appellant, engaged in manufacturing 'Flexible Polyurethane Cushion,' had availed cenvat credit on imported goods, leading to a demand of ?3,05,426/- along with interest and penalties.

2. The appellant challenged the impugned order on grounds of limitation and merits. The appellant argued that the demand beyond the limitation period was unsustainable, emphasizing the absence of allegations of suppression of facts in the show-cause notice. The appellant cited relevant legal precedents to support their position.

3. Regarding the denial of CENVAT credit on education cess and secondary higher education cess, the appellant contended that the credit was wrongly denied as the goods supplied were not imported but procured from their manufacturing unit. The appellant highlighted that the cess paid was passed on through valid invoices and that there was no dispute about the eligibility of credit under Rule 2 of CCR.

4. The validity of the appellant's claim based on invoices issued by M/s. Dow Chemicals International Pvt. Ltd. was a crucial point of contention. The appellant argued that they had paid the cess to the dealer and availed CENVAT credit based on valid invoices, asserting that the credit at the recipient end should not be denied due to any irregularities at the dealer's end.

5. The issue of limitation played a significant role in the case, with the appellant asserting that the substantial demand was time-barred. The absence of specific allegations of suppression of facts in the show-cause notice further supported the appellant's argument against the sustainability of the demand beyond the limitation period.

6. The appellant's compliance with filing ER1 returns and showing the credit availed, coupled with the lack of specific allegations of intent to evade payment of duty, further weakened the case for allegations of suppression of facts. Ultimately, the Tribunal found in favor of the appellant, setting aside the impugned order on merit without delving into the question of limitation, thereby allowing the appeal with consequential relief.

This detailed analysis encapsulates the key legal arguments, precedents cited, and findings of the Tribunal in the case concerning the rejection of the appeal regarding irregular cenvat credit.

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