2025 (1) TMI 932 - AT - Central Excise

100% EOU - entitlement to take suo-moto re-credit of the Cenvat credit that was earlier reversed without following the refund procedure under Section 11B of the Central Excise Act 1944 - HELD THAT - Indisputably it is also evidence from the records that the cenvat credit taken and utilized by the appellant stands fully recouped consequent to the reversal entries and payments made including interest thereon. By such reversal and payments it is evident that the effect of such reversal is entirely borne by the appellant and the original credit taken stands expunged. Thereafter as intimated by the appellant when it takes credit of the proportionate cenvat credit out of the amount of cenvat credit on licit input services which it even otherwise was originally entitled to take credit of there is no illegality attached to the said taking of credit. Moreover such taking of credit stands reported in the ER-2 return filed by the appellant. This Tribunal is of the view that in such circumstances there is no necessity to put the appellant through the rigors of seeking refund by following the procedures of section 11B of the Act. The reliance placed by the adjudicating authority on the decision of Tribunal larger bench in BDH Industries 2008 (7) TMI 78 - CESTAT MUMBAI-LB is misplaced. This tribunal in Sopariwala Exports Pvt Ltd v CCE Vadodara 2013 (5) TMI 430 - CESTAT AHMEDABAD has already held that when the High Court decision holds the field the larger bench decision does not have binding effect. It is also pertinent that the jurisdictional officer has not raised any objection to the appellant s intimation of its intent to avail the credit being reversed at a later date when communicated vide appellant s letter dated 21.07.2009. That apart the appellant has also stated that they had intimated the availment of the credit in the ER 2 returns filed and further that to an audit objection against the availment during March 2011 they had vide letter dated 27.04.2011 replied that the objection is unsustainable - Even otherwise when the appellant has already communicated its intent to take the credit reversed at a later date upon completion of the work and when it reflects the credit taken in the ER-2 returns the appellant cannot be held to have made any wilful mis-statement or suppression of facts with intent to evade payment of duty warranting invoking of the extended period of limitation. Therefore given that the SCN in this case is dated 11.09.2013 and has been issued invoking the extended period of limitation for making demand of the credit taken in the month of December 2009 it is evidently beyond the normal period stipulated in Section 11A and thus the demand is also barred by limitation. Conclusion - Suo-moto re-credit is permissible when the original credit is eligible and the reversal is merely an accounting entry. The extended period of limitation cannot be invoked without evidence of willful misstatement or suppression. The demand made of Rs.40, 64, 459/- under Rule 14 of Cenvat Credit Rules 2004 read with Section 11A of the Central Excise Act 1944 and the demand of appropriate interest thereon as well as the penalties imposed under the impugned order in original are untenable. Appeal allowed.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment are:

Whether the appellant was entitled to take suo-moto re-credit of the Cenvat credit that was earlier reversed, without following the refund procedure under Section 11B of the Central Excise Act, 1944.
Whether the demand for reversal of the Cenvat credit along with interest and penalties was justified under the relevant legal framework.
Whether the extended period of limitation could be invoked for demanding the credit taken in December 2009, as per Section 11A of the Central Excise Act, 1944.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Suo-Moto Re-Credit

Relevant Legal Framework and Precedents: The legal framework involves Rule 4(7) and Rule 2(l) of the Cenvat Credit Rules, 2004, and Section 11B of the Central Excise Act, 1944. Key precedents include decisions from the High Court of Madras in ICMC Corporation Limited and other related cases.
Court's Interpretation and Reasoning: The Tribunal found that the appellant was eligible for the Cenvat credit as the input services were duly paid for and the credit was initially reversed only due to a misunderstanding of the law. The court noted that the eligibility of the input service tax credit was not disputed by the department.
Key Evidence and Findings: It was established that the appellant had reversed the credit initially on the department's instruction and had informed the department of their intent to re-credit once the building expansion was complete.
Application of Law to Facts: The Tribunal applied the precedent set by the High Court of Madras, which allowed for the correction of accounting entries without necessitating a refund claim under Section 11B.
Treatment of Competing Arguments: The appellant argued that the suo-moto re-credit was justified, supported by prior judgments. The department contended that the refund procedure should have been followed. The Tribunal sided with the appellant, citing relevant case law.
Conclusions: The Tribunal concluded that the appellant was entitled to take the suo-moto re-credit without following the refund procedure, as the credit was originally eligible and the reversal was merely an accounting entry.

Issue 2: Justification of Demand for Reversal, Interest, and Penalties

Relevant Legal Framework and Precedents: The demand was based on Rule 14 of the Cenvat Credit Rules, 2004, and Section 11A of the Central Excise Act, 1944. The Tribunal referenced the decision in Sopariwala Exports Pvt Ltd and other precedents.
Court's Interpretation and Reasoning: The Tribunal found that the demand for reversal, interest, and penalties was unjustified as the appellant was eligible for the credit, and the reversal was not a loss to the revenue.
Key Evidence and Findings: The Tribunal noted that the appellant's actions were transparent, as they had informed the department of their intent to re-credit and had reflected the credit in their ER-2 returns.
Application of Law to Facts: The Tribunal applied the legal principles established in previous cases, which allowed for the correction of accounting entries without penalties.
Treatment of Competing Arguments: The department argued for penalties due to procedural non-compliance, while the appellant cited precedents allowing for suo-moto re-credit. The Tribunal favored the appellant's position.
Conclusions: The Tribunal concluded that the demand for reversal, interest, and penalties was untenable, given the appellant's eligibility for the credit and the lack of revenue loss.

Issue 3: Invocation of Extended Period of Limitation

Relevant Legal Framework and Precedents: The extended period of limitation is governed by Section 11A of the Central Excise Act, 1944. The Tribunal considered its previous decision in Xomax Sanmar Limited.
Court's Interpretation and Reasoning: The Tribunal found that the extended period of limitation could not be invoked as the appellant had not engaged in any willful misstatement or suppression of facts.
Key Evidence and Findings: The appellant had communicated their intent to re-credit to the department and had reflected the credit in their returns, negating any claims of suppression.
Application of Law to Facts: The Tribunal applied the principle that the failure of the department to scrutinize returns cannot be held against the appellant.
Treatment of Competing Arguments: The department argued for the extended period due to procedural lapses, while the appellant argued against it, citing transparency in their actions. The Tribunal agreed with the appellant.
Conclusions: The Tribunal concluded that the demand was barred by limitation, as the extended period was not applicable.

3. SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: "The effect of such reversal is entirely borne by the appellant and the original credit taken stands expunged. Thereafter, as intimated by the appellant when it takes credit of the proportionate Cenvat credit, out of the amount of Cenvat credit on licit input services which it even otherwise was originally entitled to take credit of, there is no illegality attached to the said taking of credit."
Core Principles Established: The Tribunal established that suo-moto re-credit is permissible when the original credit is eligible, and the reversal is merely an accounting entry. The extended period of limitation cannot be invoked without evidence of willful misstatement or suppression.
Final Determinations on Each Issue: The Tribunal set aside the impugned order, allowing the appeal and concluding that the demand for reversal, interest, and penalties was unjustified both on merits and due to the limitation period.

← Previous Next →