2021 (4) TMI 512 - AT - Central Excise

Quantification of CENVAT Credit reversed - common Input/Input Services used in exempted goods/exempted services and dutiable goods/taxable services - revenue has issued Show Cause Notices on the monthly reversal as well as on the yearly reversal, while appellant is calculating the amount on provisional basis month wise and also final payment on the completion of the financial year - Rule 6(3) of CCR - HELD THAT - There is indeed serious error in calculation of the amount to be paid under Rule 6(3). As regard the terms total Cenvat Credit to be considered for the formula as provided under Rule 6 (3A) - It also appears that there is a duplication of demand in as much as Show Cause Notice issued on monthly reversal as well as on yearly reversal. The Adjudicating Authority has also not properly considered the total Cenvat Credit that whether the clearances made to SEZ and deemed export under Notification No.108/95-CE dated 28.08.1995 should be taken as exempted clearances or otherwise. Likewise there are serious discrepancies in the Show Cause Notices which are purely on a factual matrix. The matter needs to be remitted to the Adjudicating Authority for proper appreciation of the facts and correct calculation of demand, if any arise - Appeal allowed by way of remand.

Summary

Issues:
Whether the appellant correctly paid/reversed the amount under Rule 6(3) when common Input/Input Services used in exempted goods/exempted services and dutiable goods/taxable services.

Analysis:
The appellants argued that they calculated the amount correctly under Rule 6(3A) of Cenvat Credit Rules on a provisional monthly basis and made final payments at the end of the financial year. They contended that the revenue's Show Cause Notices for monthly and yearly reversals resulted in a duplication of demand. The appellants emphasized that only common input/input service credit used in dutiable/taxable goods/services should be considered for calculation, not the total Cenvat Credit. They cited several judgments to support their position, including ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD. v/S. CCE, CRANES & STRUCTURAL ENGINEERS v/S. CCE, and ASTER PVT. LTD. v/S. CCE.

The Authorized Representative for the revenue reiterated the findings of the impugned order, leading to a dispute over the correct calculation of the amount required to be paid under Rule 6(3) of Cenvat Credit Rules when input/input services are used commonly in dutiable/taxable and exempted goods/services. The Tribunal acknowledged a significant error in the calculation methodology, particularly regarding the consideration of "total Cenvat Credit" under Rule 6(3A). The Tribunal noted a potential duplication of demand due to Show Cause Notices issued for monthly and yearly reversals. Furthermore, the Adjudicating Authority failed to properly assess whether clearances to SEZ and deemed exports should be treated as exempted clearances. The Tribunal concluded that the matter needed to be remitted to the Adjudicating Authority for a thorough reevaluation of the facts and accurate calculation of any demand. The Adjudicating Authority was instructed to consider the judgments cited by the appellants.

In light of the above considerations, the Tribunal set aside the impugned orders and remanded the matters to the Adjudicating Authority for fresh Denovo Adjudication. The case was disposed of accordingly, with the decision pronounced in open court on 31.03.2021.