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2018 (1) TMI 252 - AT - Central ExciseCENVAT credit - transfer of credit - Rule 4(2)(a) of the Cenvat Credit Rules - Invocation of Rule 3(5B) of CCR - Held that - Rule 3(5B) applies only to input/ capital goods which are either written off fully or partially or where this provision for writing off is made. In absence of any assertion by the revenue, the said rule cannot be invoked to deny cenvat credit to the appellants. In the instant case, the capital goods were cleared from the factory in the same financial year therefore the appellants could have availed the entire credit on the capital goods. Revenue cannot prevent the appellants their availing the entire credit in view of proviso to Rule 4(2)(a) - invocation of Rule 4(2)(a) of Cenvat Credit Rules has no basis. Appeal allowed.
Issues involved:
- Transfer of cenvat credit between units - Invocation of Rule 3(5B) to deny cenvat credit - Failure to produce evidence of not claiming depreciation - Commissioner (Appeals) not addressing specific issues - Challenge of demand on merit - Applicability of Rule 4(2)(a), Rule 3(5B), Rule 4(4) of Cenvat Credit Rules - Interpretation of Rule 3(5B) and Rule 4(2)(a) Transfer of cenvat credit between units: The appellant, a company with two units, transferred 50% cenvat credit on certain goods from Unit-I to Unit-2 in compliance with Cenvat Credit Rules. The transfer occurred in 2009, and due to a procedural delay in filing monthly returns post transfer, the appellants faced challenges. The introduction of Rule 10A in 2012 allowed SAD credit transfer between units under specific conditions, which the appellants met. The delay in filing returns was attributed to system issues. The appellant argued that this delay should not hinder the substantial right of credit transfer. Invocation of Rule 3(5B) to deny cenvat credit: The Revenue invoked Rule 3(5B) to deny cenvat credit, alleging that the goods were written off partially or fully, a condition for invoking the rule. However, as the goods were not written off, the invocation was deemed baseless. The appellant also clarified that no depreciation claims were made due to Unit-2 not commencing commercial production, eliminating the need for additional evidence. Commissioner (Appeals) not addressing specific issues: The Commissioner (Appeals) focused solely on penalty issues, neglecting to address the appellant's challenges related to Rule 4(4), Rule 3(5B), and other Cenvat Credit Rules. The appellant's failure to challenge the demand on merit before the Commissioner (Appeals) led to a lack of findings on crucial issues. Challenge of demand on merit and applicability of Cenvat Credit Rules: The appellant disputed the demand, arguing that cenvat credit could not be denied even if DEPB was used for part of the duty payment. They also contested the late filing of returns. The Tribunal noted that questions of law regarding the application of Cenvat Credit Rules could be raised before them, even if not previously raised before lower authorities. Interpretation of Rule 3(5B) and Rule 4(2)(a): Rule 3(5B) applies to goods written off partially or fully, and its invocation without evidence of such write-offs is invalid. The first proviso to Rule 4(2)(a) allows availing the entire credit on capital goods cleared in the same financial year, a right the Revenue cannot deny. The appellant's assertion of not claiming depreciation was crucial, and the Commissioner's oversight of this fact rendered the invocation of Rule 4(2)(a) baseless. In conclusion, the Tribunal found the impugned order unsustainable, allowing the appeal in favor of the appellant. The judgment emphasized the importance of procedural compliance, proper interpretation of Cenvat Credit Rules, and the need for authorities to address all relevant issues raised by appellants.
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