2023 (4) TMI 710 - AT - Central Excise

CENVAT Credit in respect of goods procured from 100% EOU - Applicability of formulae prescribed under Rule 3(7)(a) of Cenvat Credit Rules, 2004 - benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 has not been availed by appellant - demand of interest and penalty - invocation of extended period of limitation - HELD THAT - It is seen that Rule 3(7)(a) of Cenvat Credit Rules applies only the duty has been paid at the concessional rate prescribed in Serial No. 2 of Notification No. 23/2003-CE dated 31/03/2003. The appellant has submitted a significant number invoices during hearing. A perusal of these invoices shows that benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 has not been availed while payment of duty. Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 prescribes that the duty shall be calculated at the normal rate for BCD/CVD and thereafter the total duty is reduced by 50%. A perusal of invoices produced by the appellant clearly shows that the duty has not been discharged in this manner. In the appeal memorandum also, the appellant has given a chart on page 90 and 91 as Exhibit 'G'. It has been specifically claimed in respect ofmany entries that benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 has not been availed. From the above it is apparent that the observation of Commissioner in the impugned order that duty has invariably been paid under Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 is prima facie incorrect. The matter needs to be reconsidered by the original adjudicating authority by examining all invoices individually. The provisions of Rule 3(7)(a) of Cenvat Credit Rules would be applicable only in cases where the duty has been paid taking benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003. Further it is noticed that Tribunal vide order No. 88018 of 2016-SMB dated 22.02.2010 in the appellant's own case has held that the BCD mentioned in the said formula refers to the BCD leviable on the like goods if imported into India. The ratio of the said decision needs to be applied for deciding the cases where the invoices clearly indicate that duty has been paid availing benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003. In all other cases where duty has not been paid availing benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003, the registration prescribed under Rule 3(7)(a) cannot be applied. The matter is remanded to the original adjudicating authority for fresh decision - Appeal allowed by way of remand.

Summary

Issues Involved:
The denial of cenvat credit to M/s Sun Pharmaceuticals Industries Limited based on the procurement of inputs from a 100% EOU, invoking extended and normal periods of limitation, and imposition of penalty and interest under Central Excise Rules.

Denial of Cenvat Credit:
The appeal was filed against the denial of cenvat credit to M/s Sun Pharmaceuticals Industries Limited for procuring inputs from a 100% EOU. The appellant argued that the cenvat credit availed should be governed by the formula prescribed under Rule 3(7)(a) of Cenvat Credit Rules, 2004. It was contended that the formula applies only if the goods are cleared by EOU availing benefits under specific notifications. The appellant highlighted discrepancies in the invoices received, indicating that the benefit of certain notifications had not been availed. The appellant recalculated the CENVAT credit and reversed any excess amount immediately. The argument was made that the formula specified in Rule 3(7)(a) is applicable only in specific cases, and the denial of credit was based on a wrong interpretation of the rule.

Application of Cenvat Credit Rules:
The Tribunal considered the relevant notifications and rules, including Notification No. 23/2003-CE and Rule 3(7)(a) of the Cenvat Credit Rules. It was observed that the Cenvat Credit Rules apply only when duty has been paid at the concessional rate prescribed in specific notifications. The invoices submitted by the appellant indicated that the duty had not been discharged in the manner required by the notifications. The Tribunal emphasized that the provisions of Rule 3(7)(a) would be applicable only when duty has been paid taking benefit of the specified notifications. A previous decision in the appellant's own case was cited to clarify the application of the BCD mentioned in the formula for determining cenvat credit eligibility.

Remand and Fresh Decision:
Based on the above observations, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a fresh decision. The authority was directed to reexamine all invoices individually and apply the relevant provisions of the Cenvat Credit Rules in cases where duty had been paid availing benefits of specific notifications. The Tribunal emphasized the need for a thorough reconsideration of the matter in light of the applicable rules and notifications.

*(Pronounced in the open court on 13.04.2023)*