2015 (10) TMI 1691 - AT - Central Excise

Denial of CENVAT Credit - Suppression of facts - whether cenvat credit on certain inputs, sent by the appellant to the job workers under Rule 4(5) (a) of the Cenvat Credit Rules, 2004, is admissible to the appellant or not - Held that - Processing loss of 10% is claimed by the appellant with respect to only M/s. Vinayak Chemicals when no such processing loss is taking place in the case of another job worker M/s. Atlas Pallet Industries for the same process. This aspect has been discussed by the first appellate authority in Para 29 of the Order-in-Appeal dated 15.9.2012. The appellant has not produced any Scientific Literature or certificate from a Chartered Engineer to support their claim that in the process of conversion of Caustic Potash Flakes into Potash Pallets there is a loss of 10% as claimed by the appellant. In the absence of any such documentary evidence, there is no reason to interfere with the order passed by the first appellate authority and the same is required to be upheld in so far as denial of CENVAT credit and interest is concerned. Appellant was sending the inputs through challans under Rule 4 (5)(a) of the Cenvat Credit Rules, 2004, therefore the activities undertaken by the appellant and job-workers of the appellant and the processes being carried out with yield were known to the department. - it can not be said that there was any suppression/ mis-statement on the part of the appellant with intent to evade payment of duty. Accordingly, it is held that penalty imposed upon the appellant under Rule 15 (2) of the Cenvat Credit Rules, 2004, read with Section 11AC of the Central Excise Act, 1944 is required to be set-aside. - Decided partly in favour of assessee.

Summary

Issues:
Admissibility of CENVAT credit on inputs sent for job work under Rule 4(5)(a) of the Cenvat Credit Rules, 2004; Processing loss claim of 10% in the yield of Potash Pallets; Imposition of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.

Analysis:

Admissibility of CENVAT Credit:
The appeal revolved around the admissibility of CENVAT credit on inputs sent for job work. The appellant argued that a processing loss of 10% in the yield of Potash Pallets was genuine and not recoverable. The appellant cited the case law of Voltamp Transformer Limited to support their claim. However, the Revenue contended that there was no documentary proof to substantiate the processing loss claim. The Tribunal noted that no scientific literature or certificate from a Chartered Engineer was provided by the appellant to support the processing loss claim. The first appellate authority had discussed this discrepancy, leading to the denial of CENVAT credit and interest. The Tribunal upheld this decision due to the lack of evidence supporting the processing loss claim.

Processing Loss Claim:
The processing loss claim of 10% in the yield of Potash Pallets was a crucial aspect of the case. The appellant asserted that this loss was genuine, especially in the case of one job worker, while the Revenue argued against the validity of this claim. The Tribunal observed that the processing loss was claimed only in relation to one job worker, raising doubts about its consistency across different processes. The absence of documentary evidence supporting the processing loss claim further weakened the appellant's position. As a result, the Tribunal upheld the decision to deny CENVAT credit and interest based on the lack of substantiation for the processing loss claim.

Imposition of Penalty:
Regarding the imposition of penalties under Rule 15(2) of the Cenvat Credit Rules, 2004, the Tribunal found that the appellant had followed the prescribed procedure of sending inputs through challans. The activities undertaken by the appellant and the job workers were known to the department, indicating no intent to evade duty payment. As per Rule 4(5)(a) of the Cenvat Credit Rules, if inputs are not returned within 180 days, CENVAT credit must be reversed. Since there was no evidence of suppression or misstatement by the appellant, the Tribunal set aside the penalty imposed on the appellant. The decision was based on the factual matrix of the case, emphasizing the lack of deliberate evasion by the appellant.

In conclusion, the Tribunal allowed the appeal only to the extent of setting aside the penalty imposed on the appellant, while upholding the denial of CENVAT credit and interest due to the insufficient evidence supporting the processing loss claim.