2019 (3) TMI 106 - AT - Central Excise

Goods supplied as donation for earthquake relief - Benefit of exemption under N/N. 2/2001-CE and 16/2001-CE. - Held that - The goods supplied as donation for earthquake relief are exempted - In the appellant s case, even though the clinker was not supplied but though the cement supplied contains the clinker and therefore, it is clear that clinker is deemed to have been supplied for earthquake relief. Therefore, the appellant are entitled for the exemption under Notification No. 2/2001-CE. CENVAT Credit - common input used in dutiable as well as exempt goods - fuel - separate accounts for fuel was not maintained as per Rule 6(2) of Cenvat Credit Rules which requires maintenance of separate accounts except for the inputs intended to be used as fuel - Held that - The only lapse is that the appellant have availed and retained Cenvat credit on fuel. Though the appellant have discharged obligation prescribed under Rule 6 (2) of Cenvat Credit Rules, 2004 but by availing Cenvat credit on fuel, the obligation under sub Rule 1 of Rule 6 of Cenvat Credit Rules, 2004 has not been discharged. In terms of Rule 6(1) of Cenvat Credit Rules, 2004, if the appellant have reversed full Cenvat credit attributed to the goods cleared under Notification No. 16/2001-CE, the appellant become eligible for exemption - Since, the ld. Counsel has agreed to reverse the credit, we direct the appellant as well as the Adjudicating Authority to ensure the reversal of Cenvat credit on fuel attributed to the goods cleared under exemption Notification No. 2/2001-CE and 16/2001-CE. Appeal allowed by way of remand.

Summary

Issues:

1. Availment of exemption Notification No. 67/95-CE for clinker used in the manufacture of cement.
2. Demand of duty and denial of Cenvat credit on inputs for the period March 2001 to March 2003.
3. Imposition of penalties by Adjudicating Authority and Commissioner (Appeals).

Issue 1: Availment of exemption Notification No. 67/95-CE:

The appellant, engaged in cement and clinker manufacturing, availed exemption under Notification No. 67/95-CE for clinker used in cement production. The department issued show cause notices demanding duty on exempted cement cleared for earthquake relief. The appellant reversed 8% value of exempted cement initially but later maintained separate accounts for inputs except fuel. The Adjudicating Authority confirmed the notices, imposing penalties. The appellant argued for exemption based on previous Tribunal judgments and compliance with Cenvat Credit Rules.

Issue 2: Demand of duty and denial of Cenvat credit:

The Revenue contended that since the final product was cleared under exemption Notifications No. 2/2001-CE and 16/2001-CE, clinker was ineligible for exemption under Notification No. 67/95-CE. The dispute arose due to the appellant availing Cenvat credit on inputs, especially fuel, without fulfilling Rule 6 obligations. The Tribunal analyzed the relevant notifications and Cenvat Credit Rules, emphasizing the conditions for exemption and credit reversal. The appellant agreed to reverse the credit on fuel to become eligible for exemptions under both notifications.

Issue 3: Imposition of penalties:

The penalties imposed by the Adjudicating Authority and Commissioner (Appeals) were contested by the appellant, citing lack of malafide intention. The Tribunal, after considering submissions from both sides, set aside the penalties equal to the Cenvat credit on fuel. The appellant's willingness to comply with credit reversal requirements influenced the Tribunal's decision to remand the case to the Adjudicating Authority for further action.

In conclusion, the Appellate Tribunal CESTAT Ahmedabad addressed the issues of exemption availed under Notification No. 67/95-CE, demand of duty, denial of Cenvat credit, and imposition of penalties in a detailed judgment. The Tribunal clarified the conditions for exemption under relevant notifications and emphasized compliance with Cenvat Credit Rules for credit eligibility. The decision to remand the case for credit reversal and further assessment reflects a balanced approach considering the legal arguments presented by both parties.