2016 (7) TMI 1107 - AT - Central Excise

Removal of goods as such - Demand of duty under Rule 3 (5) and Rule 3(5A) of Cenvat Credit Rules, 2004 - Held that - The provisions of rule 3 (5A) read with Rule 3 (5) are not applicable in view of the categorical assertion of the appellant that no Cenvat credit was availed, which fact is further corroborated by the memorandum of purchase of 1997. Also hold that the extended period of limitation is not invokable as no case of any suppression or misconduct is made out on the part of the appellant. Thus, the appeal is allowed with consequential benefits in accordance with law.

Summary

Issues:
- Appeal against demand of duty under Cenvat Credit Rules
- Allegation of availing Cenvat credit at the time of purchase
- Applicability of Rule 3 (5A) and Rule 3 (5) of CCR
- Burden of proof on manufacturer regarding Cenvat credit
- Reversal of Cenvat credit on disposal of capital goods
- Extended period of limitation invokability

Analysis:

The appellant, a manufacturer of krafts paper and MS Ingots, appealed against an order upholding a demand of duty under Rule 3 (5) and Rule 3(5A) of Cenvat Credit Rules, along with interest and penalty. The case revolved around the purchase and subsequent disposal of a second-hand boiler by the appellant, leading to a demand of duty amounting to &8377; 2,16,300. The appellant contested the demand, arguing that no Cenvat credit was availed at the time of purchase, supported by relevant documents. The Commissioner (Appeals) rejected the appeal, citing the appellant's failure to maintain proper records as required by Rule 9(5) of Cenvat Credit Rules. The appellant then approached the Tribunal, challenging the decision.

The appellant's counsel emphasized that no allegation of availing Cenvat credit was made in the show cause notice. They presented a purchase document showing no duty charged, supporting their claim of not availing Cenvat credit. The counsel argued against raising demands based on presumptions without concrete evidence. They also highlighted the provisions of Rule 3 (5A) regarding the reversal of Cenvat credit on disposal of capital goods, contending that no duty liability arose in this case. The appellant maintained that there was no suppression of facts, as the revenue audit obtained information from the appellant's regular business records.

In its decision, the Tribunal considered the appellant's assertions and the lack of evidence supporting the alleged availing of Cenvat credit. It concluded that the provisions of Rule 3 (5A) and Rule 3 (5) were not applicable due to the appellant's explicit denial of availing Cenvat credit, substantiated by purchase documents. The Tribunal also ruled out the invokability of the extended period of limitation, as no evidence of suppression or misconduct by the appellant was found. Consequently, the appeal was allowed, granting the appellant consequential benefits as per the law.

In summary, the Tribunal's judgment favored the appellant, emphasizing the importance of concrete evidence and the burden of proof on manufacturers regarding Cenvat credit. The decision highlighted the necessity for proper record-keeping and the inapplicability of certain Cenvat credit reversal provisions in the absence of evidence supporting the alleged availing of credit.