2009 (6) TMI 525 - AT - Central Excise

Cenvat Credit- The appellants are engaged in the manufacture of Mosquito Repellant and Apparatus Liquid Refils falling under Chapter 85 & 38 respectively of the schedule to the Central Excise Tariff Act, 1985. They availed Cenvat credit on two Injection Moulds and cleared to M/s. Radian Polymers Pvt. Ltd., Ghaziabad for job work. The goods were not returned within 180 days. A show cause notice dated 6-10-2003 was issued proposing to recover Cenvat credit and to impose penalty along with interest. It has been alleged that the appellant contravened Rule 4(5)(a) of Cenvat Credit Rules, 2002 insofar as the goods had not brought to the factory within the stipulated period of 180 days. Original authority confirmed recovery of Rs. 1,21,956/- and penalty was imposed of equal amount of duty, which were upheld by the Commissioner (Appeals). Held that- credit could not be denied as moulds were covered under Rule 4(5)(b) which had no condition for return within 180 days.

Summary

Issues:
- Availment of Cenvat credit on Injection Moulds
- Non-return of goods within 180 days
- Alleged contravention of Rule 4(5)(a) of Cenvat Credit Rules, 2002
- Recovery of Cenvat credit, penalty, and interest
- Interpretation of Rule 4(5)(a) and Rule 4(5)(b) of the Rules
- Applicability of conditions for reversal of credit
- Reference to CBEC Excise Manual of Supplementary Instructions 2005
- Comparison with previous Tribunal decision

Analysis:
The case involved the appellants availing Cenvat credit on Injection Moulds sent for job work but not returned within 180 days, leading to a show cause notice for recovery of credit, penalty, and interest. The main contention was the alleged contravention of Rule 4(5)(a) of Cenvat Credit Rules, 2002. The appellants argued that Rule 4(5)(b) exempts the need for credit reversal for moulded dies not returned within 180 days. They cited the CBEC Excise Manual of Supplementary Instructions 2005 and a previous Tribunal decision to support their stance.

The Commissioner (Appeals) upheld the recovery and penalty, emphasizing that the goods were not received back within the stipulated period. The DR reiterated this position, highlighting that the appellants failed to produce the goods and did not claim the benefit of Rule 4(5)(b) initially. However, the Member (J) analyzed the rules and precedents, noting that Rule 4(5)(b) does not mandate credit reversal for moulds sent to job workers. The CBEC Excise Manual clarified this exemption for such items, further supporting the appellants' argument.

The Member (J) disagreed with the Commissioner (Appeals) on the classification of moulds and dies as capital goods, asserting that Rule 4(5)(a) applies to inputs or capital goods sent for job work, while Rule 4(5)(b) specifically addresses moulds and dies without a 180-day return condition. The Tribunal's decision in a similar case reinforced this interpretation, emphasizing that the benefit of Rule 4(5)(b) cannot be denied based on a clerical error in mentioning Rule 4(5)(a) in the challan.

Ultimately, the Member (J) found the impugned order unsustainable and set it aside, allowing the appeal with consequential relief. The judgment underscored the importance of correctly applying the Cenvat Credit Rules and highlighted the significance of specific rule provisions and relevant precedents in determining the applicability of credit reversal conditions for goods sent for job work.