2021 (4) TMI 625 - AT - Service Tax

Restriction on utilisation of CENVAT Credit - recovery of arrears - vires of Rule 8(3A) of CCR - HELD THAT - The demand in the instant case has been raised for contravention of Rule 8(3A) ibid restricting utilization of CENVAT Credit during the period of default which provision has been declared ultra vires/invalid by Court, hence, the demand cannot be sustained and the appeal, thus, succeed on this count. In the instant case no show cause notice U/s 11A of the Central Excise Act, 1944/Rule 14 of the CENVAT Credit Rules, 2004 have been issued by the department for recovery of the disputed demand which course is clearly impermissible in law in view of the judgments in the case of SANGHI POLYESTERS LTD. VERSUS SUPERINTENDENT OF C. EX., HYDERABAD 2009 (11) TMI 284 - ANDHRA PRADESH HIGH COURT , M/S SHREEMATHA PRECISION COMPONENTS, M/S JINALLOY STEEL INDUSTRIES VERSUS THE COMMISSIONER OF CENTRAL EXCISE, THE SUPERINTENDENT OF CENTRAL EXCISE 2015 (9) TMI 351 - KARNATAKA HIGH COURT , and UNIROLS AIRTEX REP. BY ITS PROPX MEENA BOOPALAN VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE 2013 (8) TMI 614 - MADRAS HIGH COURT . Show Cause Notice under section 11A of the Act read with Rule 14 of the CENVAT Credit Rules, 2004 is the foundation of any proceeding and thus mandatory for demand of duty, penalty and no demand can be confirmed without issuance of Show Cause Notice. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Duty demand upheld for contravention of Rule 8(3A) of the Central Excise Rules, 2002.
2. Initiation of proceedings without issuance of Show Cause Notice under Section 11A of the Central Excise Act, 1944/Rule 14 of the CENVAT Credit Rules, 2004.

Analysis:
1. The appeal involved a duty demand of ?2,65,12,542 for contravention of Rule 8(3A) of the Central Excise Rules, 2002 by utilizing CENVAT Credit during a specific period. The appellant had paid a portion of the duty from CENVAT Credit and the remaining amount from PLA. The appellant argued that the duty demanded was during a period of default and that they had discharged the duty as per the rules. The appellant contended that the proceeding was void as no Show Cause Notice was issued. The Advocate relied on various judgments to support the appellant's case, including the Hon'ble Gujarat High Court's ruling on the validity of Rule 8(3A).

2. The appellant argued that the words "without utilizing Credit" in Rule 8(3A) were declared ultra vires by several High Courts and the Tribunal. The appellant cited judgments that held Rule 8(3A) as invalid and emphasized that the Revenue cannot take a stand contrary to these judgments. The Authorized Representative for the respondent supported the impugned order. The Tribunal, after hearing both sides, referred to the judgments declaring Rule 8(3A) ultra vires and invalid, thereby concluding that the demand cannot be sustained. The Tribunal also noted the absence of a Show Cause Notice under Section 11A, emphasizing its mandatory nature for any duty demand.

3. The Tribunal, considering the legal precedents and the arguments presented, set aside the impugned order and allowed the appeal. The judgment highlighted the importance of following legal procedures, such as issuing Show Cause Notices, and upheld the appellant's contentions regarding the validity of Rule 8(3A) in discharging duty obligations. The decision provided consequential reliefs to the appellant based on the findings and legal interpretations presented during the proceedings.