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TMI Blog2017 (6) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... /23426/2014-SM - Final Order Nos. 20534/2017, 20535/2017 - Dated:- 26-4-2017 - Shri S.S Garg, Judicial Member Shri G. Shivadass, Advocate - For the Appellant Dr. J. Harish, AR For the Appellant ORDER The appellants have filed these two appeals against the common impugned order dated 16.07.2014 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant. Since the issue involved in both the appeals is identical and there is a common impugned order, therefore both the appeals are being disposed of by this common order. The details of both the appeals are given herein below: Appeal Nos. E/23425/2014 E/23426/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore March 2008) works out to ₹ 4,96,320/- (Rupees Four Lakhs Ninety Six Thousand Three Hundred and Twenty only). On these allegation, a show-cause notice was issued demanding the cenvat credit availed on the inputs in respect of which a provision to write off has been made in the Books of Accounts under Rule 3(5B) of the Cenvat Credit Rules 2004. Further the interest was also demanded and penalty was proposed. Similarly another show-cause notice dated 26.12.2012 on similar issue pertaining to the year ending 2011 was issued to the appellant asking them to show-cause as to why an amount of ₹ 3,75,840/- (Rupees Three Lakhs Seventy Five Thousand Eight Hundred and Forty only) equivalent to the cenvat credit taken in respect of items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order is not sustainable in law as the same has been passed contrary to the statutory provision and also contrary to the binding judicial precedent. He further submitted that the appellant has made the provision to write off the input/capital goods only in the financial books and that the input/capital goods are very much lying in the inventory at the time of making provision and are being used as and when required by the production team. He further submitted that Rule 3(5) is not applicable merely when the input written off in the financial account but lying in the factory. He further submitted that the provision relating to reversal of credit on the value of inputs written off fully or partially was introduced for the first time on 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 (Tribunal) c) Krishna Industrial Corporation Ltd. Vs. CCE - 2005 (186) E.L.T. 318 d) Eternit Everest Ltd. vs. UOI - 1997 (89) E.L.T. 28 (Mad.) 3.2. He also submitted that the recovery mechanism to recover the cenvat credit under the provisions of Rule 3(5B) was introduced on 01.03.2013 vide Notification No. 3/2013-CE (NT) dated 01.03.2013. The learned counsel further submitted that the inputs in this case have been subsequently used in the manufacture and hence the appellants are entitled to take back the credit in terms of the proviso to Rule 3(5B). Learned counsel also contested the imposition of penalty and interest and the extended period of limitation on the ground that when the inputs are in the knowledge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of dispute involved in the present case is prior to 01.03.2011 in one case and therefore by following the ratio of CCE, Jamshedpur Vs. Tata Motors Ltd. cited supra the appellants are not required to reverse the cenvat credit. Further I also find that there was no recovery mechanism to recover the cenvat credit wrongly taken under the provisions of Rule 3(5B) and the recovery mechanism was brought into existence from 01.03.2013 vide Notification No. 3/2013 dated 01.03.2013 and in view of the decisions relied upon by the appellants cited supra, demand of cenvat credit for the inputs for which the provision to write off has been made is not sustainable. Considering the submissions of both the parties, I am of the view that the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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