2023 (7) TMI 474 - AT - Central Excise

CENVAT Credit - provision for obsolence of inventory/stores for the period 2009-10 to 2011-12 made, but no reversal of Cenvat Credit availed on such inventory/stores during the said period in accordance with Rule 3(5B) of CCR - HELD THAT - The provision of Rule 3(5B) covers the situation where the value of the inputs or capital goods is written off fully or partially before being put to use. Therefore when the value of capital goods, on which Cenvat credit has been taken, is written off fully or partially before being put to use then only Cenvat credit is required to be reversed. The words partially written off have been incorporated w.e.f. 1.3.2011 and before that date, unless it is complete written off, rule 3(5B) ibid had no application. The entire case rests on the fact whether the inputs which have been written off, are available in the factory and have been used subsequently in the manufacturing operations as claimed by the appellant - Admittedly in the instant matter Rule 3(5B) ibid itself provides for reversal when the capital goods, on which Cenvat credit has been taken, are not put to use and the total amount related to those goods is written off fully or partially. The Chartered Accountant s certificate is not corroborated by any documentary evidence except the inventory obsolesce account and/or SAP system on the basis of the which, the chartered accountant has certified that the items for which the provision for obsolesce of inventory made in FY 2011-12 has been written back in the subsequent years 2012-13 or 2013-14 or the period subsequent to 2015-2017 as covered by another periodical show-cause notice. Time and again it has been held that the Chartered Accountant s certificate is not primary document. The SAP entry, as per the learned counsel, itself shows the intention to use such disputed items in manufacturing process subsequently but as per the Tribunal s order dated 19.12.2017 the appellant was required to show, to the adjudicating authority, from the records that the obsolete stock was used and written back into the records on being sold on discharge of payment of duty. The appellant are under obligation to produce documentary evidence before the adjudicating authority. Learned counsel for the appellant tried to show some chart being copy of documents showing item wise working of the provision as was existing during the periods in issue, but it is deemed proper to leave it to the lower authority who is the appropriate authority to see whether this or the inventory obsolesce account are sufficient evidence/proof. Therefore, in the interest of justice, for the purpose of producing documentary evidence before the lower authority, another opportunity granted to the appellant and remanding the matter to the first appellate authority to decide the appeal afresh after following the principle of natural justice. The impugned orders, to the extent of their challenge herein, are set aside and the appeals to that extent are remanded to the learned Commissioner (Appeal) for a fresh decision after giving sufficient opportunity to the appellants for placing on record the documentary evidence in support of their claim - Appeal allowed by way of remand.

Summary

Issues involved: The judgment involves issues related to recovery of interest for the years 2009-10 to 2010-2011, demand under Rule 3(5B) Cenvat Credit Rules, 2004 for the year 2011-12, and demand not quantified for the years 2015-16 to 2016-17 along with penalty.

Recovery of Interest (2009-2011): The appellant, engaged in manufacturing, had made provisions for obsolete inventory/stores during 2009-2011 but had not reversed the Cenvat Credit availed on such inventory/stores as required by Rule 3(5B) Cenvat Credit Rules, 2004. The appellant argued that the inventory provisions were made for income tax purposes only and the inventory was subsequently used in manufacturing and cleared on payment of excise duty. The Tribunal noted that unless the inputs were fully written off, Rule 3(5B) did not apply before 1.3.2011. The appellant was directed to provide documentary evidence to substantiate their claim.

Demand under Rule 3(5B) for 2011-12: For the year 2011-12, a duty liability was proposed along with interest as the appellant failed to reverse the Cenvat credit. The appellant contended that interest could not be demanded for the years 2009-2011. The Tribunal emphasized the need for documentary evidence to support the claim and remanded the matter for fresh decision after granting the appellant an opportunity to produce necessary evidence.

Demand not quantified for 2015-16 to 2016-17: Another show cause notice was issued for these years proposing duty recovery due to the appellant's failure to pay an amount equivalent to the Cenvat credit taken on slow-moving/obsolete inventory. The appellant presented a certificate from a chartered accountant, but no other documentary evidence. The Tribunal stressed the importance of providing documentary evidence and remanded the matter for a fresh decision after granting the appellant another opportunity to submit necessary evidence.

Conclusion: The Tribunal set aside the impugned orders and remanded the appeals to the Commissioner (Appeal) for a fresh decision, emphasizing the need for the appellant to provide documentary evidence to support their claims. The Commissioner was directed to consider all evidence furnished by the appellant without being influenced by previous observations.