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2019 (3) TMI 99 - AT - Central ExciseCENVAT Credit - inputs or not - credit availed on the strength of invoices received from the supplier of liquefied Oxygen / Nitrogen/Argon gas which are finished products treating the same as inputs - Held that - The appellant has paid the duty on value addition and the same has been accepted by the Department and hence the appellant has paid the higher duty than the CENVAT credit claimed by him, therefore he cannot be denied the CENVAT credit - Further, the appellants even before the Commissioner(Appeals) has given sufficient proof in the form of invoices and other documents showing that he has paid duty on higher value The issue is decided in the case of COMMISSIONER VERSUS CREATIVE ENTERPRISES 2009 (7) TMI 1206 - SUPREME COURT , where it was held that if the activity of the assessee does not amount to manufacture there can be no question of levy of duty, and if duty is levied, Modvat credit can t be denied by holding that there is no manufacture. Credit allowed - appeal allowed - decided in favor of appellant.
Issues:
- Appeal against rejection of CENVAT credit availed on invoices for gases treated as inputs - Appellant's contention of paying excess duty on goods treated as manufactured - Department's argument against granting CENVAT credit for non-manufacturing activities Analysis: 1. The appeal challenged the rejection of CENVAT credit availed on invoices for gases treated as inputs by the appellant. The original authority confirmed the demand of CENVAT credit along with interest and penalty. The Commissioner(Appeals) also rejected the appeal, leading to the present appeal. 2. The appellant argued that they paid excess duty on the goods treated as manufactured, which was accepted by the Department. They contended that the Department cannot reverse the CENVAT credit when duty on a higher value has been paid and accepted. The appellant provided detailed submissions, including invoices and statements showing higher duty payments. 3. The learned counsel for the appellant cited various decisions to support their argument, emphasizing that when duty is paid on a higher value accepted by the Department, CENVAT credit cannot be reversed. The appellant highlighted cases like Crompton Greaves Vs. CCE and Emel Enterprises Vs. CCE to strengthen their position. 4. On the contrary, the Department argued that if the activity does not amount to manufacturing, the appellant cannot claim CENVAT credit and must reverse the same along with interest and penalty. The Department contended that the appellant's activities did not qualify as manufacturing, hence CENVAT credit should not be granted. 5. After considering the submissions and evidence, the Tribunal found that the appellant had indeed paid duty on value addition, which was accepted by the Department. The Tribunal noted that the appellant had provided ample proof of paying duty on a higher value. Citing precedents like the case of Emel Enterprises, Bangalore, the Tribunal held that the demand for reversing CENVAT credit was unsustainable. 6. Referring to decisions like Creative Enterprises and Ajinkya Enterprises, the Tribunal reiterated that if an activity does not amount to manufacturing, duty cannot be levied, and CENVAT credit cannot be denied. Relying on these precedents, the Tribunal concluded that the impugned order was not sustainable in law and allowed the appeal of the appellant, providing consequential relief as necessary.
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