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TMI Blog2018 (3) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... z India (P) Ltd vs CCE, Pune-I [2015 (8) TMI 24 - CESTAT MUMBAI] has held that we do not understand that when the appellant have categorically by way of their intimation opted for option provided under sub-rule (3)(ii), how Revenue can insist that option (3)(i) under Rule 6 should be followed by the assessee. Appeal allowed - decided in favor of appellant. - Appeal No. E/3913/2010-EX [ DB ] - Final Order No. 61337/2018 - Dated:- 21-2-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Sh. Sanjay Malhotra, C.S. For the Respondent : Sh. G. M. Sharma, A.R. ORDER Per : Devender Singh The appellants are in appeal against the Order-in-Original No. 43-45/CE/CHD-II/10/790 dated 14.09.2010 passed by the Commissioner of Central Excise, Chandigarh-II. 2. Brief facts of the case are that the appellants are manufacturers of Paper and Sulphuric Acid. They are also clearing paper meant for Text Book Board at nil rate of duty. As they were using inputs and input services for both exempted goods and dutiable goods, they were required to maintain separates accounts of inputs and input services under the Cenvat Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board s Circular dt. 09.05.2008 and contended that the Commissioner had not paid attention to the direction of the Board context at Sr. No. 7 of the questions and answers therein. In this regard, he pleaded that Rule 6(3A)(a) of the Cenvat Credit Rules does not mention any due date for intimation; therefore, confirmation of the demand on the ground that the option and intimation of Cenvatable balances were not filed is not justified in relation to show cause notice dt. 05.05.2010. 4. Ld. A.R. reiterated the findings in the order of the adjudicating authority. 5. Heard both the sides and perused the record. 6. We find that on 01.04.2008, the appellants had filed the intimation regarding exercise of option under Rule 6(3)(ii) of CCR, 2004 effective from 01.04.2008 onwards. We also find that the same has been acknowledged by the Superintendent of Range Office, Barnala. With the said intimation, the appellants have enclosed the required particulars under Rule 6(3A) of the Cenvat Credit Rules, 2004. We also find that the appellants had intimated the closing balances of Cenvat credit as on 31.03.2008 vide their letter dt. 03.04.2008, which bears the stamp of the Jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of an amount equal to the Cenvat Credit amount attributed to input services used in or in relation to manufacture of exempted goods or provision of exempted services as provided under sub rule (3A)(b). It is observed that the appellant has availed the option provided under sub-rule (3)(ii) of Rule 6 and paid an amount as per sub-rule (3A) along with interest and intimated the same to the jurisdictional superintendent in writing vide letter dated 14-3-2012. From the perusal of the said letter, we observed that the appellant categorically stated in the said letter that payment of Cenvat Credit, which they have made alongwith interest is in accordance with Rule 6 (3A) of Cenvat Credit Rules. With this act of the appellant, it is clear that the appellant opted for the option as provided under Rule 6(3)(ii) of the Cenvat Credit Rules, 2004, in accordance to which, the appellant are supposed to an amount equivalent to Cenvat Credit on input service attributed to the exempted service in terms of Rue 6(3A). In the present case, the appellant has availed Cenvat credit in respect of common input services, which has been used in relation to the manufacture of the final product as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of the such return submitted along with appeal papers, it is observed that the particulars, as required under clause (a) of sub-rule (3A) of Rule 6 has been produced to the range superintendent. Therefore all the particulars which are required to be intimated to the Jurisdictional superintendent while exercising option stand produced. Though these particulars have not been submitted specifically under a particular letter, but since these particulars otherwise by way of return and some of the information under their letters has admittedly been submitted, we are of the view, as regard this compliance of Rule 6(3A), it stood made. 5.3 As regard the contention of the adjudicating authority that this option should be given in beginning and before exercising such option, we are of the view that though there is no such time limit provided for exercising such option in the rules but it is a common sense that intention of any option should be expressed before exercising the option, however the delay can be taken as procedural lapse. We also note that trading of goods was considered as exempted service from 2011 only, thus it was initial period. We are also of the view that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught out cars in terms of Rule 6(3A) comes to ₹ 4,06,785/- where as adjudicating authority demanded an amount of ₹ 24,71,93,529/-. In our view, any amount, over and above ₹ 4,06,785/- is not the part of the Cenvat Credit, which required to be reversed. The legislator has not enacted any provision by which Cenvat credit, which is other than the credit attributed to input services used in exempted goods or services; can be recovered from the assessee. 5.6 We have gone through judgments relied upon by the Ld. A.R. In the arguments, we found that as regards the judgments on the issue of availment of Cenvat credit on the input or input services used in dutiable and exempted goods, the provision involved in the present case i.e. Rule 6(3) (i) (ii) (3A) has not been considered in the relied upon judgments, therefore the same are not applicable. As regard the other judgments, all these judgments having different facts and dealing with other provisions such as SSI exemption, exemption notification, etc., which are not identical to the fact of the present case, Moreover, in the present case the substantive provisions under Rule 6(3)(ii) and sub rule (3A) i.e. payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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