2021 (10) TMI 1228 - AT - Central Excise

CENVAT Credit - removal of goods after use - denial of credit on the ground that transaction value against stock transfer is not a sale - availed in terms of proviso to Rule (5A)(a) of CENVAT Credit Rules, 2004 - Revenue neutrality - HELD THAT - A close reading of Rule 5 and sub-Rule 5A would clearly reveal that removal after being used is the requirement for availment of CENVAT credit and whether it is a sale transaction/not a sale transaction is not a criteria that would determine the eligibility of availment of such credit and therefore it would be erroneous to say that transaction value of the invoice would have no basis unless it is a sale transaction because CENVAT credit was taken at the time of purchase of capital goods that has already determined the transaction value and it is that value which is noted in the transfer challan. Revenue neutrality - HELD THAT - The appellant had clearly mentioned in the documents evidencing transfer that the valuation was done as per the Circular No. 643/34/2002-CX dated 01/07/2002 and the same is held to be proper calculation by the Jurisdictional Range Offer of the supplier of capital goods, besides the facts that it is now a settled position of law that legality of such availment of credit cannot be questioned at the receiver s end let alone a revenue neutral situation. Appeal allowed - decided in favor of appellant.

Summary

Issues: Denial of CENVAT credit on grounds of stock transfer not being a sale.

Analysis:
1. Facts of the Case: The appellant, a job worker, received duty paid capital goods from a supplier under a duty paying invoice. The Department denied CENVAT credit of a significant amount and issued a show-cause notice for recovery. The Commissioner (Appeals) partially allowed the appeal but denied credits against specific invoices noting them as stock transfers and not sales.

2. Appellant's Argument: The appellant argued that denial of credit based on the nature of the transaction was incorrect. The appellant cited various case laws to support the admissibility of credit at the receiver's end when legality was affirmed by the Range Superintendent for the supplier.

3. Department's Argument: The Department aimed to establish that even the partial grant of credit was erroneous, emphasizing a distinction between 'duty' and 'amount paid.' Reference was made to judicial decisions and a Tribunal finding to support their stance.

4. Commissioner's Finding: The Commissioner accepted the CENVAT credit for most capital goods but refused credit for goods over 10 years old, noting them as stock transfers and not sales. The Commissioner's order emphasized the need for 'removal after being used' for credit availment, rather than the nature of the transaction.

5. Legal Analysis: The order highlighted that the transaction value at the time of purchase of capital goods determined the eligibility for CENVAT credit, irrespective of whether the subsequent transfer was a sale or not. The appellant's adherence to valuation guidelines and the settled legal position that credit legality cannot be questioned at the receiver's end were crucial in challenging the denial of credit.

6. Final Decision: The Tribunal allowed the appeal, setting aside the denial of CENVAT credit against specific invoices, emphasizing the proper calculation of valuation and the settled legal position supporting credit availment at the receiver's end. The order was pronounced in favor of the appellant on 22.10.2021.