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TMI Blog2022 (9) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... credit under the CGST Act can be availed as input tax credit. Obviously, the quantum of credit which relates to the items which continued to be covered under the Central Excise Act would not be admissible as input tax credit under CGST Act and therefore, the argument of the Revenue that the Respondent should have transferred the entire credit is incorrect. There are no grounds to interfere with the order of Commissioner - appeal dismissed - decided against Revenue. - EXCISE CROSS APPEAL NO. 10601 OF 2019 in EXCISE APPEAL NO. 11492 OF 2019 - A/11120/2022 - Dated:- 9-9-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. Prabhat K Rameshwaram, Additional Commissioner for the Appellant Shri. S. Suryanarayanan, Advocate for the Respondent ORDER This appeal has been filed by Revenue against order of Commissioner setting aside the Show Cause Notice issued for demand of cenvat credit and interest. Cross objection has also been filed by M/s ONGC. 2. Learned Authorized Representative pointed out that the show cause notice was issued to the respondent demanding reversal of cenvat credit. The respondent are engaged in manufacture of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept when they are eligible under these Rules. Learned Authorized Representative pointed out that the Rule 15 of Cenvat Credit Rules, 2017 uses a word shall . He relied on the decision of Hon ble Bombay High Court in the case of Malaysian Airlines vs UOI 2010 (262) ELT 192 BOM for wich following has been observed in para 52: Para 52....The use of the word Skall in the statute, ordinarily speaking, means the statutory provision is mandatory. It is construed as such, unless there is something in the context in which the word is used, which would justify departure from that meaning... 4. Learned counsel appearing for the respondent pointed out that this is a revenue neutral situation. The appellant could have availed the credit as ITC under GST regime. In either circumstance the appellant would have got set off on the said amount from the duties and taxes leviable (GST or Central Excise duty) and only balance would have been paid in cash. 4.1 Learned counsel further relied on the decision of Hon ble High Court of Delhi in case of Mega Cabs Pvt. Ltd. 2016 (43) STR 67 to assert that after introduction of GST Regime the audit of respondent itself is ab initio illegal and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or after the 1st day of July, 2017. Rule 15. Transitional Provisions: (1) A person registered under the Central Goods and Services Tax Act, 2017 (12 of 2017) shall transfer the entire CENVAT credit available under the CENVAT Credit Rules, 2004 relating to the period ending with the day immediately preceding the 1st day of July, 2017 in his electronic credit ledger as per Chapter XX of the Central Goods and Services Tax Act, 2017 (12 of 2017) and the rules made there-under, and any CENVAT credit which is not eligible for such transfer shall not be retained as CENVAT credit unless eligible under these rules. 6. The Revenue is of the opinion that the assessee transitioning from central excise regime to GST regime, either partially or fully, is mandatorily required to transfer the entire cenvat credit available in the Cenvat Credit Rules into electronic credit ledger as per Chapter XX of Central Goods and Service Tax Act, 2017 and the Rules made thereunder. The Revenue fails to notice that the Rule further states that any cenvat credit which is not eligible for such transfer would not be retained as cenvat credit unless eligible under these Rules, which means Cenvat Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of CENVAT credit to which the said person was entitled in respect of the said capital goods under the existing law. (3) A registered person, who was not liable to be registered under the existing law, or who was engaged in the manufacture of exempted goods or provision of exempted services, or who was providing works contract service and was availing of the benefit of notification No. 26/2012-Service Tax, dated the 20th June, 2012 or a first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer, shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished [goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to] the following conditions, namely: (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eligible for input tax credit on such inputs under this Act; (iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of credit that has been taken under this subsection. (6) A registered person, who was either paying tax at a fixed rate or paying a fixed amount in lieu of the tax payable under the existing law shall be entitled to take, in his electronic credit ledger, credit of eligible duties in respect of inputs held in stock and inputs contained in semi-finished or finished [goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to]95 the following conditions, namely: (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of inputs; and (v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day. (7) Notwithstanding anything to the contrary contained in this Act, the input tax credit on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act,1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act,1975; (iv) [*****]; (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985; and (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001, in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day. Explanation 2.-For the purposes of sub-section (5), the expression eligible duties and taxes means (i) the additional duty of excise leviable undersection 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957; (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act,1975; (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act,1975; (iv) [*****]; (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985; (vi) the duty of excise specified in the Second Schedule to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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