2022 (10) TMI 193 - AT - Central Excise

Refund of CENVAT Credit - erroneous utilisation of cenvat credit for discharge of duty - maintenance of separate account with respect to clearances under N/N. 1/2011 - Time Limitation - Revenue Neutrality - HELD THAT - The limitation under Section 11A(1)(a) was one year, which was substituted for two years w.e.f. 14.05.2016. The appellant have filed their returns (form ER-1) from time to time and have made proper disclosure of their clearances and mode of payment of duty. It is further found that admittedly appellant have not taken cenvat credit on inputs utilised for clearance of finished product under Notification No. 01/2011-CE. As GST regime have been implemented w.e.f. 01.07.2017, the accumulated cenvat credit with the appellant assessee was available for transmission to GST regime as on 30.06.2017. In the facts of the present case, the duty have been demanded vide show cause notice dated 01.05.2018 i.e. after implementation of GST regime. It is found that there is only a venial breach of law by utilisation of cenvat credit for payment of duty for goods cleared under concessional rate during the period under dispute. It is also found that the situation is Revenue neutral as on payment of duty again in cash as demanded by the impugned order, the appellant shall be entitled to refund of equal amount being the duty discharged earlier through cenvat credit. The appellant have not contravened the provisions of law or the rules made thereunder with intent to evade payment of duty - Appeal allowed - decided in favor of appellant.

Summary

Issues:

1. Utilization of cenvat credit for payment of duty under Notification No. 1/2011-CE.
2. Discharge of duty through account current/cash.
3. Invocation of extended period of limitation.
4. Imposition of penalty under Section 11AC read with Rule 25 of Central Excise Rules.
5. Appeal against the order-in-appeal dated 18.05.2020.

Utilization of Cenvat Credit for Payment of Duty:

The appellant, a manufacturer of dutiable goods, cleared products at concessional rates under Notification No. 1/2011-CE and 2% duty availing cenvat credit benefit. However, Revenue observed the appellant discharged duty using cenvat credit instead of cash, contrary to Rule 3(4) of Cenvat Credit Rules. The appellant argued that they export products under bond, accumulating cenvat credit refundable under Rule 5. The appellant maintained separate accounts and rectified the method of duty payment upon notification. The show cause notice alleged non-payment through account current/cash, invoking extended limitation period.

Discharge of Duty Through Account Current/Cash:

The appellant's contention that they paid duty through cenvat credit, not availing it on inputs under Notification No. 1/2011-CE, was supported by the absence of suppression or fraud. The transition to the GST regime allowed re-crediting of the duty paid through cenvat credit, rendering the situation revenue neutral. The appellant's timely returns and disclosure of clearances further negated any fraudulent intent.

Invocation of Extended Period of Limitation:

The change in limitation period to two years from May 14, 2016, and the appellant's timely filings with proper disclosure indicated no intent to evade duty payment. The duty demand post-GST implementation showed a minor breach in utilizing cenvat credit for concessional rate goods, ultimately leading to a revenue-neutral scenario.

Imposition of Penalty under Section 11AC:

The appellant's compliance with duty payment procedures, absence of fraudulent activities, and the revenue-neutral outcome post-GST implementation warranted a reevaluation of the penalty imposition under Section 11AC read with Rule 25. The Tribunal found no contravention of laws or rules to evade duty payment, leading to the appeal's allowance.

Appeal Against the Order-in-Appeal:

The Tribunal, after considering the contentions, set aside the impugned order and allowed the appeal with consequential benefits, emphasizing the revenue-neutral nature of the situation post-GST implementation. The appellant's compliance, lack of fraudulent intent, and proper disclosure of clearances contributed to the favorable decision.

This detailed analysis of the judgment highlights the issues involved, the arguments presented by the appellant and Revenue, and the Tribunal's findings leading to the appeal's allowance with consequential benefits.