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TMI Blog2022 (5) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the matter. Moreover, it is also not coming forth with clarity as to the reason for payment of such amount by the appellants. The issue should travel back to the original authority for proper examination considering all the facts of the case and submissions of the appellants. Needless to say that the imposition of penalty should also be looked into afresh. Availment of Cenvat credit on inputs, which were exclusively used in the manufacture of exempted goods viz. Tatra Trucks and Tatra Engines - HELD THAT:- The impugned order has also recorded that against the liability of Rs.1,94,104/-, the appellants had accepted the demand to the extent of Rs.14,664/- and contended that the balance amount is under scrutiny for taking appropriate action in the matter within a short period. It has further been stated that the appellants have not come forward with any further details regarding the balance amount. Since, the appellants did not submit the proof regarding non-reversal of Cenvat credit for the balance amount, the matter cannot be decided at this end as to whether proceedings initiated for recovery of such amount and confirmation of the demand under Rule 14 ibid read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds maintained by the appellants for the disputed period, the Department observed that the appellants had not followed the requirements/procedures laid down under sub-rule (3) of Rule 6 of the CENVAT Credit Rules, 2004 in paying the amount provided therein. Accordingly, proceedings were initiated by the Department for recovery of the amount in percentage basis provided under the statute along with interest and for imposition of penalties. The show-cause notice dt. 23/08/2012 issued in this regard was adjudicated vide the Order-in-Original No.MYS-EXCUS-000-COM-011-13-14 dt. 30/01/2014 (for short, referred to as the impugned order ), wherein demand of Rs.16,17,000/-; Rs.1,94,104/-; Rs.7,78,03,800/-; and Rs.2,97,56,551/- were confirmed on the appellants in terms of Rule 14 ibid. The amounts paid by the appellants during the course of adjudication were appropriated in the impugned order. Further, an amount of Rs.59,51,31,058/- was determined as the assessable value of Tetra Engines in terms of Section 4 of the Central Excise Act, 1944 read with Rule 8 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000. Besides, the impugned order has also imposed pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat Credit Rules, 2004. Input services: i. No credit of input services availed during 2010-11 to 2011-12. ii. In August 2011, credit of Rs.66,54,699/- was availed on input services for the services received during 2007-08 2008-09 and in April 2012, credit of Rs.1,05,26,058/- was taken aggregating to Rs.1,71,80,757/- on input services pertaining to period 2007-08 to 2011-12. iii. The appellants had reversed an amount of Rs.1,70,547/- in July 2008, October 2008 and April 2010 and the balance amount of Rs.1,70,10,210/- was reversed in the month of July 2012. Inputs: i. Separate inventory maintained for dutiable and exempted goods. ii. No credit has been availed on exclusively inputs used in the manufacture of exempted final products. iii. The common input credit according to the Department itself comes to Rs.2,32,748/- (Rs.72,502/- for the year 2010-11 Rs.82,875/- for the year 2011-12 as per para 7(e) of SCN and Rs.77,371/- for the year 2007-08 to 2010-11 as per para 7(i) of SCN. iv. The appellants have reversed the credit amounting to Rs.14,664/- and the same has been appropriated in the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 452 (Tri. Chennai)], affirmed in 2015(323) ELT 323 (Mad.)]; CCE Vs. Himalaya Drugs [2011(271) ELT 350 (Kar.)]; CCE Vs. Diplast Plastics Ltd. [2010(257) ELT 397 (P H)] and Swiss Parenterals Pvt. Ltd. Vs. CCE [2014(308) ELT 81 (Tri. Ahmd.)], to contend that where the demand raised to pay a percentage of sale price of exempted goods, the demand is liable to be set aside on showing the evidence that such credit had already been reversed by the assessee in their books of accounts. 2.4. The learned advocate further submitted that reversal of credit as shown in the ER-1 return by the appellants can be considered as exercise of option to reverse proportionate Cenvat credit and that the Department cannot choose one of the options on behalf of the assessee. In this context, he has relied upon the decisions rendered by the judicial forums in the case of Tiara Advertising Vs. UOI [2019(30) GSTL 474 (Telangana)] and Mercedes Benz Pvt. Ltd. Vs. CCE, Pune [2015(40) STR 381 (Tri. Mum.)]. 2.5. As regards the limitation aspect is concerned, the learned advocate submitted that the demand for the period prior to August 2011 is barred by limitation of time for the reasons that the entire va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priated in the impugned order. However, with regard to the submissions of the appellants that such demand is barred by limitation of time and as such, the amount should be entitled for refund to the appellants with consequential relief, the learned Adjudicating Authority had held that since, the amount in question was not paid under Rule 6 ibid, the provisions of Rule 14 ibid have been rightly invoked by the department for recovery of the amount. We find that it is not forthcoming from the records presented before us as to whether the appellants have specifically raised any objection or filed any protest letter while making payment of such amount. However, it is only clear from the order that the amount so paid had already been ordered for appropriation. Since, the amount in question had been paid by the appellant, protest if any registered by the appellant vis-a-vis this particular aspect needs to be verified from the available records with the adjudicating authority or with the appellants. This assumes significance as the appellants having paid the amount are raising the issue of protest and the question of limitation before the Tribunal. It is not clear whether this issue was ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, the learned adjudicating authority has held that the appellants had not maintained separate accounts and had not followed the procedures laid down under Rule 6(3)(i) ibid. We find that contrary to the said findings, the appellants vide sub-Paras (F) and (G) at Paragraph 10 in the impugned order have stated that the credit commonly used for manufacture of the exempted and dutiable goods were proportionately reversed by the appellants. In view of the fact that the submissions made during the course of adjudication were recorded in the impugned order, but no findings to the effect of reversal of proportionate Cenvat credit as above was considered by the adjudicating authority with the help of the documentary evidences. Thus, in our considered opinion, the matter should be looked into afresh by the original authority for a decision, whether the proportionate Cenvat credit had actually been reversed by the appellants or not. 9. The impugned order had also confirmed an amount of Rs.2,97,56,551/- on the appellants, assigning the reasons that the formula prescribed under Rule 6(3)(i) have not been complied with. Since, the appellants claimed that they had maintained separate record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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