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TMI Blog2023 (4) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish a certificate from the cost accountant/chartered accountant giving details of quantity of input used in the manufacture of exempted goods value thereof and Cenvat Credit taken on this inputs to be submitted at the end of the year. It is not in dispute that the assessee had submitted a chartered accountant s certificate dated 15th November, 2010. The Commissioner while examining the said certificate found that the certificate shows the financial year wise/month wise percentage of cenvat credit paid both on input and input services vis- -vis the percentage of duty paid, clearance and non-duty paid clearance covering the period from 2006-07 to 2009-10 which include the duty paid bonded and NRD dispatches - the Commissioner held that non-availing of Cenvat credit upto 15% could be equated as availing of 100% credit on all the common inputs and payment of duty upto 15% of the value of the common inputs which could be attributable to having been used for the manufacture of exempted products. Further, it was held that payment of 15% duty was made within the due date. The question of payment of interest does not arise and hence, it could be concluded that the assessee has com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard Mr. Bhaskar Prasad Banerjee, learned counsel for the appellant and Mr. Saurabh Bagaria, learned Advocate for the respondent and perused the averments set out in the affidavit filed in support of the application for condonation. We find sufficient cause has been shown for not preferring the appeal within the period of limitation. Accordingly, the application for condonation of delay is allowed and the delay in filing the appeals is condoned. These appeals filed by the revenue under Section 35G of the Central Excise Act, 1944 (the Act in short) are directed against the final order dated 2nd February, 2022 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (the Tribunal) by which the appeals filed by the appellant/revenue were dismissed. The Revenue has raised the following substantial questions of law for consideration: (i) Whether the Learned Tribunal erred in law in not appreciating the grounds made out by the Department and relevant provisions of the Cenvat Credit Rules, 2004 and relying upon the decisions in the case of Tiara Advertising and the certificate of Chartered Accountant, has passed the impugned order which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere cleared at the NIL rate of duty but exemption notification under which goods have been removed were not mentioned in the ER 1 returns submitted by the assessee. There was an earlier round of litigation which travelled upto to the Tribunal and the Tribunal by order dated 20th March, 2012 set aside the order of the Commissioner and remanded the matter for de novo consideration. Pursuant to which the Commissioner took up the case for de novo consideration and by order dated 15th December, 2016 (the dates of the orders passed by the Commissioner in the other appeals are different. However, since we have taken up CEXA/22/2022 as lead case, the dates which are relevant to the said case are taken into consideration) dropped the proceedings holding that the assessee has fulfilled the obligation under Rule 6 of the Cenvat Credit Rules, 2004 inasmuch as they have not taken credit of duty in respect of such portion of the input/input services which were subsequently used by them for manufacture of exempted goods and, therefore, the alleged contravention of the provisions of the Cenvat Credit Rules, 2004 did not occur. Therefore, the question of recovery of Cenvat Credit attributable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate dated 15th November, 2010. The Commissioner while examining the said certificate found that the certificate shows the financial year wise/month wise percentage of cenvat credit paid both on input and input services vis- -vis the percentage of duty paid, clearance and non-duty paid clearance covering the period from 2006-07 to 2009-10 which include the duty paid bonded and NRD dispatches. Therefore, the Commissioner held that non-availing of Cenvat credit upto 15% could be equated as availing of 100% credit on all the common inputs and payment of duty upto 15% of the value of the common inputs which could be attributable to having been used for the manufacture of exempted products. Further, it was held that payment of 15% duty was made within the due date. Therefore, the question of payment of interest does not arise and hence, it could be concluded that the assessee has complied with the amended provisions of Rule 6 of the Cenvat Credit Rules, 2004 brought about by the Finance Act, 2010. Further, after taking note of the certificates, the Commissioner noted that the percentage of credit not availed or forgone is always more than or equal to the percentage of non-duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the requirements of maintenance of separate accounts under Rule 6(2) and, therefore, upheld the order passed by the Commissioner who had dropped all the demands raised against the assessee. It is pointed out by the learned counsel for the revenue that after the order passed by the Tribunal, the Department has issued certain letters, the first of which is dated 29th April, 2022 and the assessee has also submitted reply and further communication has been sent to the assessee. These communications have been sent to the assessee for the period covered in CEXA/22/2022 and CEXA/24/2022. In our opinion, the Department having issued such communication, it goes without saying that they have now embarked upon an exercise to examine the contents of the Chartered Accountant s certificate. This would indirectly mean that the contest which was made before the Tribunal with regard to the Chartered Accountant s certificate does not any longer survive and it is only the contents thereof, sufficiency or insufficiency of the material contained in the certificate which is now being pursued by the Department. Therefore, technically we would not be wrong in observing that the revenue has accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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