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2021 (11) TMI 15 - AT - Central ExciseReversal of proportionate CENVAT Credit - requirement to pay 5%/10% of the value of exempted goods in terms of Rule 6(3) of Cenvat Credit Rules, 2004 - period post 01.04.2008 - applicability of retrospective amendment in Rule 6 - rule effective only up to 31.03.08 or not - HELD THAT - There is no dispute in the fact that the appellant even though belatedly, but admittedly reversed the Cenvat credit in respect of input/input service attributed to exempted goods along with interest. Even though, the appellant initially availed the Cenvat Credit but subsequently reversed the proportionate credit along with interest, the situation is as if the Cenvat credit was not availed right from the taking credit, therefore, the demand of 5%/10% under Rule 6(3) of Cenvat Credit Rules, 2004 is not sustainable. The issue decided in the case of M/S BOMBAY MINERALS LTD. VERSUS C.C.E. S.T. RAJKOT (VICE-VERSA) 2019 (1) TMI 175 - CESTAT AHMEDABAD where it was held that In the present case since the Ld. Commissioner has demanded 5% / 10% of the value of exempted goods, he has not verified the correctness of actual cenvat credit attributed to exempted goods as reversed by the assesse. It can be seen that on the identical facts that once the assessee reversed the proportionate credit along with interest in the case of any delay, the demand of 5%/10% under Rule 6(3) is not sustainable - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Whether the appellant is required to pay 5%/10% of the value of exempted goods under Rule 6(3) of the Cenvat Credit Rules, 2004, when the appellant has reversed the proportionate Cenvat credit along with interest for the period post 01.04.2008. Issue-Wise Detailed Analysis: 1. Requirement to Pay 5%/10% of the Value of Exempted Goods: The core issue in this case is whether the appellant must pay 5%/10% of the value of exempted goods under Rule 6(3) of the Cenvat Credit Rules, 2004, despite having reversed the proportionate Cenvat credit along with interest for the period after 01.04.2008. The department argued that the retrospective amendment in Rule 6 was effective only up to 31.03.08, and thus, for the period post-01.04.2008, the appellant is required to pay 5%/10% as they availed Cenvat Credit on common inputs/input services for manufacturing both exempted and dutiable final products. Appellant's Argument: The appellant contended that even for the period not covered under the retrospective amendment brought by the Finance Act, 2010, if the assessee reverses the proportionate Cenvat Credit for inputs/input services attributed to exempted goods, along with interest, the demand of 5%/10% of the value of exempted goods is not sustainable. This argument is supported by multiple judgments, including those from the Bombay High Court, Supreme Court, and various Tribunals, which consistently held that once the Cenvat credit is reversed along with interest, it is as if the credit was not availed from the beginning. Tribunal's Findings: The Tribunal noted that there is no dispute that the appellant reversed the Cenvat credit along with interest, albeit belatedly. The Tribunal emphasized that the situation should be treated as if the Cenvat credit was never availed, making the demand of 5%/10% under Rule 6(3) unsustainable. This position has been upheld in several judgments cited by the appellant, such as CCE, Thane-I Vs. Nicholas Piramal (I) Ltd, CCE Vs. Gujarat Narmada Fertilizers Co Ltd, and others. Verification of Reversal Amount: The Tribunal acknowledged that the Commissioner demanded 5%/10% of the value of exempted goods without verifying the correctness of the actual Cenvat credit attributed to exempted goods as reversed by the assessee. Therefore, the Tribunal remanded the matter to the original authority for verification of the quantification of the reversal. The verification is necessary to ensure the correctness of the reversal amount, and the original authority is directed to pass a fresh de novo order after such verification. Legal Precedents: The Tribunal referred to several precedents where similar issues were adjudicated. In cases like Bombay Minerals Ltd Vs. CCE, Rajkot and Welspun Corp. Ltd Vs. CCE, Kutch, it was consistently held that if the appellant reverses the proportionate credit along with interest, the demand under Rule 6(3) is not sustainable. The Tribunal reiterated that the procedural lapses, such as belated reversal, do not negate the substantive compliance of reversing the proportionate credit. Conclusion: The Tribunal concluded that the proportionate credit paid by the appellant along with interest is sufficient compliance under Rule 6(3). Consequently, the demand under Rule 6(3)(i) for 5%/10% of the value of exempted goods and all associated penalties were set aside. The appeal was allowed in these terms, with the matter remanded to the original authority for verification of the reversal amount. Final Order: The impugned order was set aside, and the appeal was allowed. The Tribunal directed the original authority to verify the proportionate reversal of Cenvat credit and pass a fresh de novo order. The Tribunal also emphasized that there was no suppression of facts by the appellant, and the extended period for demand was not applicable. The penalties imposed were also deemed unsustainable.
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