2016 (8) TMI 663 - AT - Central Excise

Cenvat credit - wrong availment - inputs used in the manufacture of exempted as well as dutiable finished goods - failed to maintain separate records - Held that - since there was no proposal for recovery/appropriation of said credit in the Show Cause Notice, therefore, its confirmation is incorrect, in as much as in the Show Cause Notice there has been specific proposal in this regard. Recovery of 8%/10% of the value of the exempted product - Rule 6(3) of CENVAT Credit Rules, 2004 - Held that - it is found that in the two statements, the Managing Director has categorically stated that they did not avail CENVAT Credit on the input Dextrose anhydrous , the principal raw material used in or in relation to the manufacture of final products, but availed only on input packing material. However, in view of the retrospective amendment to the relevant Cenvat Credit Rules by virtue of Section 70 to 73 of Finance Act, 2010, the Appellant are eligible to reverse proportionate CENVAT Credit for the disputed period attributable to the inputs used in the manufacture of exempted product. Therefore, to ascertain the above facts and to apply the retrospective amendment by allowing the Appellant to reverse the proportionate credit, it is necessary to remand the case to the Adjudicating authority. Accordingly, the Appeal is remanded to the Adjudicating authority to ascertain the proportionate credit attributable to exempted products and allow its reversal in the light of the retrospective amendment. Imposition of penalty on Director - Held that - No specific reason has been recorded by both the authorities below narrating the Director s role for non-reversal of the CENVAT Credit. Accordingly, the penalty on the Director is not sustainable. - Decided in fsvour of appellsnt

Summary

Issues:
1. Availability of CENVAT Credit on inputs used in the manufacture of exempted finished goods.
2. Imposition of penalties on the company and the director for alleged wrong availment of credit.
3. Confirmation and appropriation of CENVAT Credit amount.
4. Eligibility to reverse proportionate CENVAT Credit on inputs used in the manufacture of exempted products.

Analysis:
1. The appeals were filed against the Order-in-Original (OIA) passed by the Commissioner (Appeals) regarding the availment of CENVAT Credit on inputs used in the manufacture of both dutiable and exempted finished goods. The Appellants were alleged to have wrongly availed credit without maintaining separate records, leading to demands of significant amounts. The Appellant argued that they did not avail credit on the principal raw material for exempted goods and should be allowed to reverse proportionate credit on inputs used in exempted products due to a retrospective amendment. The Tribunal found merit in this argument and remanded the case to ascertain and allow the reversal of proportionate credit.

2. The imposition of penalties on the company and the director was also challenged. The Appellant contended that there was no evidence of personal involvement of the director in the alleged wrong availment of credit. The Tribunal noted that there was no specific reason recorded by the authorities below regarding the director's role in the matter. Consequently, the penalty on the director was deemed unsustainable, and the appeal on this issue was allowed with consequential relief.

3. Regarding the confirmation and appropriation of CENVAT Credit amount, the Tribunal found that there was no specific proposal for recovery/appropriation of the credit in the Show Cause Notice. As a result, the confirmation of the credit was deemed incorrect. The Tribunal directed the Adjudicating authority to reassess this issue.

4. The eligibility to reverse proportionate CENVAT Credit on inputs used in the manufacture of exempted products was a crucial aspect of the case. The Tribunal acknowledged the retrospective amendment to the relevant CENVAT Credit Rules, allowing the Appellant to reverse proportionate credit attributable to inputs used in exempted products. Therefore, the Tribunal remanded the case to the Adjudicating authority to ascertain and facilitate the reversal of proportionate credit in light of the retrospective amendment.

In conclusion, the Tribunal addressed the various issues raised in the appeals, providing detailed analysis and directions for further proceedings, emphasizing the importance of compliance with CENVAT Credit rules and the impact of retrospective amendments on credit availment.