9911796707
TMI Blog2019 (3) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of this case. Moreover, there is no charging provision has incorporated for recovery of Cenvat credit till yet. A similar issue has been dealt by this Tribunal in the case of M/s Shiv Engineering Industries [2018 (11) TMI 418 - CESTAT CHANDIGARH], wherein in terms of Rule 3(5) of the Cenvat Credit Rules, 2004, if the inputs were cleared as such, the assessee is required to reverse the Cenvat credit taken on such inputs in terms of Rule 3(5) of the Cenvat Credit Rules, 2004. But in case, if the Cenvat credit has not been reversed then how the same is recoverable. Admittedly, in the case in hand, the Cenvat credit sought to be recovered in terms of Rule 14 of the Cenvat Credit Rules, 2004, the appellants were entitled to take the Cenvat credit at the time of availment of Cenvat credit, therefore, the same cannot be said that they have taken Cenvat credit wrongly. Further, the Cenvat credit is lying in their Cenvat credit account; therefore, the same has not been utilized by the appellants wrongly. In these terms, Rule 14 of the Cenvat Credit Rules, 2004 is not applicable to the facts of this case. Appeal allowed - decided in favor of appellant. - APPEAL NO. E/993/2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by both the sides, we find that the sole issue in this case is that in terms of Rule 11 of the Cenvat Credit Rules, 2004, Whether the appellants are required to reverse the Cenvat credit lying in stock contained in inputs/ semi finished goods/ finished goods at the time of opting for exemption where the final goods were exempted. 7. We find that at the time of availment of Cenvat credit, the appellants were entitled to avail Cenvat credit on inputs/input services and capital goods. Later on, their final goods became exempt; therefore, the case of the Revenue is that the Cenvat credit lying in their Cenvat credit account shall lapse. 8. For better appropriation, the provisions of Rule 11 of the Cenvat Credit Rules, 2004 are incorporated as under: Rule 11. Transitional provision.- (1) Any amount of credit earned by a manufacturer under the CENVAT Credit Rules, 2002, as they existed prior to the 10th day of September, 2004 or by a provider of output service under the Service Tax Credit Rules, 2002, as they existed prior to the 10th day of September, 2004, and remaining unutilized on that day shall be allowed as CENVAT credit to such manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the balance of CENVAT credit, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any excisable goods, whether cleared for home consumption or for export or for payment of service tax on any other output service, whether provided in India or exported. On going through the said provision, it is true that as the appellant s final product has become exempt from payment of duty absolutely, therefore, the appellants are not allowed to utilize the Cenvat credit lying in their Cenvat credit account. But there is no provision that how the same shall be recovered . Rule 14 of the Cenvat Credit Rules, 2004, is applicable only in a case where the Cenvat credit has been taken and utilized wrongly. Admittedly, the Cenvat credit has not been utilized by the appellants i.e. lying in Cenvat credit account. Moreover, at the time of taking the Cenvat credit, the appellants were entitled to take the Cenvat credit, therefore, they have not taken and utilized the Cenvat credit wrongly. Therefore, the provisions of Rule 14 are not applicable to the facts of this case. Moreover, there is no charging provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has taken cenvat credit wrongly. Further, from the facts of case and allegation of made in the show cause notice it is not coming out whether the said cenvat credit has been utilized by the appellant or not? Therefore, benefit of doubt goes in favour of the appellant. Further, it is not the case of erroneously refund to the appellant. In that circumstances, provisions of Rule 14 are not applicable to the facts of this case, therefore, in the facts and circumstances of the case Rule 14 are not applicable. In view of the above, it is not necessity to analyze the decision of the Hon ble Apex Court in the case of Sulochana Amma (Supra) to decide whether the explanation given under Notification No. 3/2013-CE (NT) dated 01.03.2013 is substantial change in law or not or merely, explanation of Rule 3 (5) of the Cenvat credit rules, 2004. 9. As discussed above, the provisions of Rule 14 of the Cenvat Credit Rules, 2004 are not applicable to the facts of this case, therefore, no proceedings are sustainable against the appellant. In that circumstance, the impugned order is set aside. In result, the appeal is allowed with consequential relief, if any. Admittedly, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
