9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (7) TMI 639 - AT - Central ExciseAdmissibility of Cenvat credit - various issues - re-credit of amount wrongly debited - Credit on Part/Component of Capital goods - Disallowance of Credit Adjustment Entry - Restoration of Provisional Debit Due Negative Price Variation - held that - appellants made two debits for the same clearance by mistake. Whether a refund application is required to be filed to reverse such wrong debits is an issue on which contrary decisions of the Tribunal exists. We follow the decision of the Larger Bench of the Tribunal in the case of BDH Industries (2008 (7) TMI 78 - CESTAT MUMBAI) and hold that the suo motto credit taken is not proper and is recoverable. The duty payment was made without availing the exemption under notification 108/95-CE later they reversed the entry showing duty payment on the ground that they were eligible for the exemption. - This type of re-credit clearly amounts to taking refund of excise duty paid. Such refund has to pass through the test of time bar and unjust enrichment. So assessee could not have re-credited the amount in his account on his own without filing a refund claim.
Issues:
1. Admissibility of Cenvat credit taken by M/s Bharat Heavy Electricals Ltd. during November 1997 to October 1999. Analysis: 1. Appeal No. E/1218/2005: - Issue 2.1: Non-filing of Declaration under Rule 173 G CER 1944 before Receipt of Inputs. - Appellants faced challenges in declaring inputs due to varying specific names used by suppliers. Despite immediate declaration upon receipt, the delay in filing was not condoned by the adjudicating authority. Appellants argued for credit based on past decisions. - Issue 2.2: Restoration of Wrongly Debited Credit. - Appellants mistakenly debited duty for more sets of windings than dispatched, rectified through re-credit entry. Citing proper account maintenance under Rule 226 CER 1944, Appellants sought credit based on tribunal rulings. - Issue 2.3: Credit on Part/Component of Capital goods. - Disputed credit on parts of capital goods was challenged based on tariff classification. Appellants argued entitlement under rule 57Q (5) citing tribunal precedents. 2. Appeal No. 1219/2005: - Issue 3.1: Disallowance of Credit Adjustment Entry. - Appellants faced challenges due to delayed communication regarding duty exemption, leading to provisional debits. Re-credit entry was made upon clarification, supported by tribunal rulings. - Issue 3.2: Restoration of Provisional Debit Due Negative Price Variation. - Excess debits due to price variation were restored through re-credit entry, seeking verification during finalization of assessments. 3. Appeal No. E/1220/2005: - Issue 4: Non-filing of declaration under Rule 173 G before receipt of inputs. - Similar submissions as Appeal No. E/1218/2005 were made regarding the non-filing of declaration before input receipt. 4. Appeal No. E/1221/2005: - Issue 5.1: Filing of Declaration after Receipt of Inputs. - Similar submissions as Appeal No. E/1218/2005 were made regarding the filing of declaration after input receipt. - Issue 5.2: Re-credit Entry After 180 Days from date of issuance U/r 57F(4) in Modvated Inputs. - Appellants sought re-credit based on compliance with rule provisions, arguing against the application of rule 57G(5) for disallowing credits. 5. General Issues: - Revenue contested the validity of suo moto credits taken by Appellants and argued against refunds for excess payments. The Tribunal upheld the decisions on non-filing of declaration issues and examined re-credit matters closely. - The Tribunal found that the Appellants' suo moto credits were not proper and recoverable. The issue of re-credit for clearances under an exemption notification required further examination based on time bar and unjust enrichment principles. If assessments were provisional, refund claims could be considered without time constraints. This detailed analysis covers the various issues related to the admissibility of Cenvat credit in the legal judgment involving M/s Bharat Heavy Electricals Ltd. decided by the Appellate Tribunal CESTAT, CHENNAI.
|
