2009 (8) TMI 520 - AT - Central Excise

Cenvat Credit- Returned goods- There are two issue involve in this appeal. The first issue is whether the Cenvat credit taken and availed for outward transportation is admissible or not and the second issue is whether the Cenvat credit on return goods availed by the appellants is recoverable and whether the appellant is liable to penalty or not? In the impugned order it has been held that the appellants are not eligible for the Cenvat credit on both accounts and accordingly an amount of Rs.43,642/- (Rupees forty-three thousand six hundred and forty-two only) has been demanded and a penalty of Rs.10,000/- (Rupees ten thousand only) has also been imposed. Held that- In the light of the decision of ABB Ltd. & Others v. CCE & Service Tax, Bangalore 2009 -TMI - 34139 - CESTAT, BANGALORE, such credit is admissible. Therefore the first issue is no longer res integra and accordingly appeal in respect of this portion has to be allowed. For the second issue it held that- as per rule clearly recognizes the fact that the goods are being received back by the manufacturer and what is required to be proved in such cases is whether the goods had suffered duty at the time of removal. From the submissions made by the appellant, I find that for reasons best known to the supplier and the receiver, in this case, the purchaser did not take credit of basic excise duty but took credit of only the Education Cess. Naturally he would not be able to show the element of excise duty in the invoice since he has not taken the credit thereof and he is simply returning the goods received as such. Under these circumstances, the procedure followed by the appellant cannot be found fault with. In the absence of such evidence and in view of the documents produced by the appellants, I feel that the benefit of Cenvat credit of duty paid by the appellants at the time of removal goods to Mahindra & Mahindra Ltd. has to be allowed. Accordingly, appeal is allowed with consequential relief to the appellants

Summary

Issues:
1. Admissibility of Cenvat credit for outward transportation.
2. Recoverability of Cenvat credit on return goods and liability to penalty.

Analysis:
1. The first issue pertains to the admissibility of Cenvat credit for outward transportation. The Tribunal referred to a previous ruling by the Larger Bench in ABB Ltd. & Others v. CCE & Service Tax, Bangalore, which held that such credit is admissible. Consequently, the Tribunal decided that the appeal in this regard should be allowed.

2. The second issue involves the disallowance of Cenvat credit on return goods by the lower authorities. The appellants argued that they were entitled to the credit based on the duty paying documents and relevant invoices. They contended that the triplicate copy of the invoice is a valid duty paying document for availing Cenvat credit on returned goods, citing case laws such as M/s. SHARP PUMPS (P) LTD v. CCE, COIMBATORE and M/s. BAPL INDUSTRIES LTD v. CCE, COIMBATORE. The appellants also highlighted that the purchaser did not avail basic excise duty credit but only Education Cess credit. The Tribunal found that the appellants had paid duty at the time of removal of goods to the purchaser, who did not reverse the credit at the time of returning the goods. Therefore, the Tribunal allowed the appeal in favor of the appellants, granting them the benefit of Cenvat credit on the duty paid for the returned goods.

In conclusion, the Tribunal allowed the appeal concerning the admissibility of Cenvat credit for outward transportation based on the precedent set by the Larger Bench. Additionally, the Tribunal ruled in favor of the appellants regarding the recoverability of Cenvat credit on return goods, finding that they were entitled to the credit based on the duty paying documents and relevant invoices provided.