2023 (11) TMI 215 - AT - Central Excise

Re-credit of cenvat credit already reversed - capital goods - applicability of provision of Section 11B of CEA - re-credit even as per cenvat credit rules is within the reasonable time or not - N/N. 30/2004-CE dated 09.07.2004 - HELD THAT - The appellant admittedly had reversed the cenvat credit in the year 2006 and thereafter they claimed the re-credit after almost 7 years i.e. in 2013. Apart from the applicability of Section 11B, we find that even in case of initial credit, whether the appellant is entitled to re-credit after substantial period of 7 years was not examined by the adjudicating authority. The adjudicating authority has only decided the matter that Section 11B is not applicable in the case of re-credit. Even if it is assumed that provision of Section 11B for the purpose of re-credit of Cenvat credit is not applicable but whether the appellant can take the re-credit after 7 years of its reversal. The matter as a whole needs to be reconsidered by the adjudicating authority - Appeal allowed by way of remand.

Summary

Issues involved:
The issue involved in the present case is the re-credit of cenvat credit already reversed, specifically regarding capital goods, and whether Section 11B is applicable for such re-credit within a reasonable time.

Details of the Judgment:

Issue 1 - Applicability of Section 11B for re-credit of cenvat credit:
The appellant argued that the re-credit of cenvat is akin to taking fresh credit, thus Section 11B, which pertains to refund of excise duty, should not apply. Citing various judgments, the appellant contended that Section 11B and its prescribed time limit are not relevant in the case of re-credit. On the other hand, the authorized representative reiterated the findings of the impugned order.

Issue 2 - Time period for claiming re-credit after reversal:
Upon careful consideration, the Tribunal noted that the appellant had reversed the cenvat credit in 2006 and sought re-credit almost 7 years later in 2013. While the applicability of Section 11B was discussed, the Tribunal highlighted that the adjudicating authority did not examine whether the appellant could claim re-credit after such a substantial period. The Tribunal observed that while the judgments cited by the appellant were based on different facts, the extended period of 7 years for re-credit was not addressed in those cases. Consequently, the Tribunal concluded that the matter required further examination by the adjudicating authority, setting aside the impugned order and remanding the case for a fresh decision.

Conclusion:
The Tribunal allowed the appeal by remanding the case to the adjudicating authority for a fresh order, emphasizing the need to reconsider the issue of re-credit after a significant period of time.

(Separate Judgment delivered by the Judges: None)