2020 (3) TMI 149 - AT - Central Excise

Reversal of CENVAT credit on CVD and SAD - wheel sets for use in the manufacture of railway wagons. However, after availing the CENVAT Credit they have not used some of the wheel sets for manufacture of railway wagons, but instead transferred them to their Sister Unit at Sodepur after reversing the CENVAT Credit - extended period of limitation. Case of Department is that while they availed CENVAT Credit on both the CVD and SAD they have reversed only the CVD and they have not reversed the credit of SAD availed by them. HELD THAT - It is not in dispute that the appellant assessee availed CENVAT Credit on the imported wheel sets in respect of both the CVD and SAD paid by them. It is not in dispute that against the same Bills of Entry some wheel sets were cleared on payment of duties and same were cleared under DEEC without payment of duty and it is not possible to separate duty paid goods from the goods cleared under DEEC. Therefore, the only way to decide whether the goods which were transferred to the sister unit were duty paid or duty free is based on the records of the assessee and how they treated the transferred goods. It is not in dispute that the appellant assessee has treated the transferred goods as duty paid and also reversed some portion of the CENVAT Credit so availed. The amount of CENVAT Credit so reversed has been taken as credit by the sister unit. Under the circumstances, there are no force in the argument of the Assessee that the goods which were treated by them as duty paid for the purpose of reversing CENVANT Credit of CVD must be treated as duty free for the purpose of reversing SAD. Extended period of limitation - HELD THAT - There is force in the argument of the assessee that their sister unit gets credit of the amount of CENVAT Credit reversed by the appellant and therefore no malafide can be attributed to them. For extended period of limitation to be invoked, there must be fraud or collusion or willful misstatement or suppression of facts or violation of the provisions of the Act or Rates with an intent to evade payment of duties - none of these elements exists in the present case - the extended period of limitation under Section 11 (A) cannot be invoked. Penalty under Rule 15 (1) of CCR 2004 - HELD THAT - The penalty under Rule 15 (1) of CCR 2004 is imposable only when any person takes or utilizes CENVAT Credit wrongly. There is no such allegation at all in the Show Cause Notice. Therefore revenues appeal is liable to be rejected. The appeal is remanded to original authority for the limited purpose of calculation of the amount of CENVAT Credit to be reversed for the normal period of limitation - appeal allowed by way of remand.

Summary

Issues:
1. Availing of CENVAT credit on imported goods and subsequent transfer to sister unit.
2. Reversal of CENVAT credit on specific duties.
3. Imposition of penalties under CENVAT Credit Rules 2004.
4. Application of extended period of limitation.
5. Interpretation of Rule 15 (1) of CCR 2004 for penalty imposition.

Issue 1: Availing of CENVAT credit on imported goods and subsequent transfer to sister unit:
The appellant, a manufacturer of excisable goods, imported wheel sets for railway wagons and availed CENVAT credit on the additional duties paid. Some wheel sets were transferred to a sister unit without using them for manufacturing, leading to a discrepancy in the reversal of CENVAT credit on specific duties.

Issue 2: Reversal of CENVAT credit on specific duties:
The department issued a Show Cause Notice demanding the reversal of CENVAT credit on the special additional duty of Customs (SAD) not reversed by the appellant. The appellant contested this demand, arguing that they had mistakenly reversed the credit of the countervailing duty (CVD) but not the SAD, and that the transferred goods were duty paid, justifying the partial reversal.

Issue 3: Imposition of penalties under CENVAT Credit Rules 2004:
The original authority confirmed the demand and imposed a penalty under Rule 15 (2) of CENVAT Credit Rules 2004. The appellant contested the penalty, claiming that the reversal was revenue-neutral as the sister unit received the reversed credit. The tribunal found no malafide intent to evade duty, leading to the setting aside of the penalty.

Issue 4: Application of extended period of limitation:
The tribunal ruled that the extended period of limitation could not be invoked as there was no evidence of fraud, collusion, willful misstatement, or intent to evade duty. Consequently, the demand for the extended period was set aside, and the penalty under Rule 15 (2) was annulled.

Issue 5: Interpretation of Rule 15 (1) of CCR 2004 for penalty imposition:
The tribunal rejected the revenue's appeal, stating that penalty under Rule 15 (1) of CCR 2004 is applicable only when CENVAT credit is utilized wrongly, which was not alleged in the Show Cause Notice. Therefore, the appeal was dismissed, and the demands within the normal period of limitation were upheld.

This detailed analysis of the judgment highlights the key issues surrounding the availing and reversal of CENVAT credit on imported goods, penalties under CENVAT Credit Rules 2004, the application of the extended period of limitation, and the interpretation of penalty imposition rules.