2012 (9) TMI 817 - HC - Central Excise

Denial of cenvat credit assessee is ineligible to avail Cenvat credit as the said Cenvat credit was availed after a lapse of six months of the date of issue of bill of entry - manufacturer who receives the inputs in the factory under cover of Bill of Entry from what date the period of six months specified in sub-rule (5) of Rule 57(G) is to be calculated Held that - though we accept the finding of the Larger Bench that Bill of Entry is a document issued as provided under Rule 57G, insofar as the date from which the limitation is to be computed for the purpose of sub-rule (5) of Rule 57G is concerned, it would be the date on which the order under Section 47(1) of the Act that is out-of-charge order is handed over to the importer. - matter remanded to the original authority to verify the dates and find out whether the claim for credit was made within six months from the date of such order being handed over to the importer and then pass an appropriate order This case is a glaring example of how precious judicial time is wasted because of the lethargy of the department in not bringing to the notice of the Tribunal and the Larger Bench of the Tribunal the notification that was issued as far as back in the year 1996. It is time that appropriate steps are taken and a responsibility be fixed on the concerned officials and the officials will keep in mind the circular issued by the Board and pass orders in terms of the circular and not play hide and seek game with the judicial authority which is evident in this case.

Summary

Issues Involved:
1. Eligibility to avail Cenvat credit after six months from the date of the Bill of Entry.
2. Interpretation of the term "date of issue" under Rule 57G(5) of the Central Excise Rules, 1944.
3. Application of the Circular No. 275/109/96-CX, dated 26-11-1996.
4. Remand to the original authority for verification of dates.

Detailed Analysis:

1. Eligibility to Avail Cenvat Credit After Six Months from the Date of the Bill of Entry:
The primary issue was whether the assessee could avail Cenvat credit after six months from the date of the Bill of Entry. The Tribunal held that the assessee was ineligible to avail Cenvat credit as it was availed after six months from the date of issue of the Bill of Entry. The Larger Bench affirmed this decision, holding that the Bill of Entry should be treated as an original document for the purpose of Cenvat credit.

2. Interpretation of the Term "Date of Issue" Under Rule 57G(5) of the Central Excise Rules, 1944:
The assessee argued that the six-month period should be computed from the date the duty was paid and the out-of-charge order was issued, not from the date the Bill of Entry was filed. The Tribunal, however, interpreted the "date of issue" as the date the Bill of Entry was returned to the importer after assessment. The High Court clarified that the six-month period should be computed from the date the out-of-charge order is handed over to the importer, aligning with the procedural steps under Sections 46 and 47 of the Customs Act, 1962.

3. Application of the Circular No. 275/109/96-CX, Dated 26-11-1996:
The Revenue pointed out Circular No. 275/109/96-CX, which specified that the six-month period should be computed from the date of payment of duty. The High Court emphasized that this circular was binding on the Revenue and should have been considered by the Tribunal. The High Court criticized the Revenue for not bringing this circular to the Tribunal's notice, which led to unnecessary judicial time being wasted.

4. Remand to the Original Authority for Verification of Dates:
The High Court remanded the matter to the original authority to verify whether the claim for credit was made within six months from the date the out-of-charge order was handed over to the importer. The Court directed the original authority to pass an appropriate order based on this verification.

Conclusion:
The High Court concluded that the six-month period for availing Cenvat credit should be computed from the date the out-of-charge order is handed over to the importer, not from the date of filing the Bill of Entry. The appeal was partly allowed in favor of the assessee, and the matter was remanded to the original authority for further verification. The Court also highlighted the need for the Revenue to adhere to binding circulars and streamline its functioning to avoid wasting judicial time.