2019 (7) TMI 628 - AT - Central Excise

CENVAT Credit - input/input services - rejection on the ground that appellant had availed drawback for the export clearances and SSI exemption on clearances for home consumption - HELD THAT - The appellant has already availed drawback of ₹ 20 lakhs. Then the appellant cannot avail credit of inputs/input services. The credit availed is, therefore, wrong and not eligible to the appellant - The order disallowing the credit and recovery of the same is legal and proper Penalty - HELD THAT - The appellant, who is doing major clearance as export cannot in any way benefit by availing the credit. They availed the credit on opinion that it would be more beneficial than drawback. They did not suppress the fact of availing drawback benefit - the penalty of ₹ 4,23,503/- is unwarranted. Appeal allowed in part.

Summary

Issues:
- Eligibility of the appellant to avail Cenvat credit on packing materials
- Applicability of drawback benefit and SSI exemption on clearances
- Disallowance of Cenvat credit by the department
- Legal opinion regarding availing credit and seeking refund
- Imposition of penalty by the original authority

Analysis:

1. Eligibility of Cenvat Credit on Packing Materials:
The appellant, engaged in manufacturing Fruit Pulp, availed Cenvat credit of duty paid on packing materials. The department contended that the appellant was not eligible for this credit. The show-cause notice proposed recovery of wrongly availed credit. The original authority confirmed the demand, leading to an appeal before the Commissioner (Appeals) and subsequently to the present appeal.

2. Applicability of Drawback Benefit and SSI Exemption:
The appellant cleared certain finished products in the domestic market without duty payment, availing SSI exemption. For export clearances, they were availing drawback and not taking Cenvat credit initially. However, based on legal advice, they later availed credit and sought a refund under Rule 5 of Cenvat Credit Rules, 2004. The department objected, citing the receipt of drawback benefits. The appellant withdrew the refund claim, leading to the issuance of the show-cause notice for recovery of the availed credit.

3. Disallowance of Cenvat Credit:
The department argued that the appellant, having already availed drawback benefits, was not eligible to avail Cenvat credit for export clearances. The authorities disallowed the credit, emphasizing that an assessee cannot enjoy both Cenvat credit and drawback simultaneously.

4. Legal Opinion and Penalty Imposition:
The appellant's counsel explained that the credit availed was based on legal advice suggesting it would be more beneficial than drawback. The appellant had reversed a significant amount in their Cenvat account before filing the refund claim. The tribunal held that the order disallowing the credit and recovering the amount was legal. However, the imposed penalty was deemed unwarranted due to the appellant's genuine belief in the legality of availing credit over drawback. The penalty was set aside, but the demand for the wrongly availed credit was upheld.

In conclusion, the tribunal partially allowed the appeal by setting aside the penalties while maintaining the demand for the wrongly availed credit. The judgment emphasized the importance of legal advice in tax matters and clarified the ineligibility of simultaneous benefits like Cenvat credit and drawback.