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TMI Blog2023 (12) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... - and they have availed Cenvat of Rs. 54,46,566/- only in respect of three or four common inputs - there are no justification for confirmed demand of Rs. 35,39,80,370/- for the period 2009-10 to 28/02/2011. For the same reason, the confirmed demand of Rs. 49,43,41,259/- for the period 01/03/2011 to May 2013 is not legally sustainable. However, verification is required to be done about the Cenvat Credit taken for the common inputs to the extent of Rs. 54,46,566/-, a figure which is being agreed to by the both sides - it is directed that the Adjudicating Authority to apply the procedure prescribed under Rule 6 of CCR, 2004, for proportionate reversal of Cenvat Credit. For arriving at this figure, Gross Total Credit available, total credit taken, credit taken for common inputs, total turnover, exempted turnover etc. are required to be considered as per the CCR Rules, 2004. Extended period of limitation - Appellant submits that there is total absence of suppression on their part and prays that the confirmed demand towards the extended period is required to be set aside - HELD THAT:- There are considerable force in this argument since the Appellants have been filing the Returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in exempted finished goods. However, in respect of the some common inputs like oxygen, electrodes, liquid Argon gas etc. since, it was impossible to maintain separate account for the dutiable and exempted goods, they have availed Cenvat Credit to the extent of Rs.54,46,566/- only whereas as per their calculation, they were eligible for Rs.96,77,463/- as Cenvat Credit on common inputs. Therefore, when the Appellant has maintained separate accounts towards Cenvat Credit taken, he submits that the confirmed demand of over Rs.84.83 crores is legally not sustainable. 3. He does not dispute that though they were required to follow the procedure as specified under Rule 6(3) and 6(3A) of the Cenvat Credit Rules, 2004, the same was not followed due to unintended lapse but no intention to evade could be fastened them on account of this procedural lapse. He submits that in respect of the Cenvat Credit availed on account of common inputs, if any amount is still to be reversed they are ready to reverse the same along with interest. However, he submits that as per their calculation while the Cenvat Credit taken on common inputs comes to Rs. 54,46,566/- in the normal course they would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 792. The aforesaid five members Bench of the Tribunal after taking into account the ratio laid down by the Supreme Court in the case of Chandrapur Magnet Wire (P) Ltd. v. CC, Nagpur, 1996 (81) E.L.T. 3 has held as under :- 6. Drawing similar analogy we consider that subject to the reversal of Modvat credit taken with regard to the inputs which were utilised in the manufacture of duty free goods, the manufacturer could avail of the Modvat credit as well as full duty exemption under applicable small scale exemption notification with regard to some specified goods. Reference is answered accordingly. 7. As a result the impugned order-in-appeal dated 28-1-1999 passed by the Central Excise is set aside and the appeal of Franco Italian Company (supra) is allowed subject to the conditions that Modvat credit taken of the duty paid on the inputs which were utilised in the manufacture of duty free goods, is reversed. 18. In view of the above decision we are of the opinion that reversal of Modvat credit amounts to non-taking of credit on the inputs. Hence the benefit has to be given of the notification granting exemption/rate of duty on the final product since the reversa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Supreme Court in the case of Chandrapur Magnet Wire (supra). 25. The Tribunal again in a three Member Bench decision in the case of Tube Investment of India, Final Order No. 795/2002, wherein the specific issue was whether the reversal of credit subsequent to removal of goods, was fetal to the extension of benefits of the notification considered the matter at length. The majority decision upheld the argument of the assessee therein and held that reversal of credit subsequent to the clearance of exempted product is in line with the ratio of the Supreme Court judgment laid down in Chandrapur Magnet Wires Co. (supra). 26. Thus all the Division Benches of the Tribunal have been following the larger Bench decision and have taken a consistent view that reversal of the credit can be made even subsequent to the clearance of the final products. The impugned order dated 1-10-2003 appears to be the only order which is contrary to the consistent view taken so far. 31. In view of the above decision the writ petition is allowed and the demand of duty and penalty created by order dated 30-10-2001 and confirmed by the Tribunal is set aside. [Emphasis supplied]. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the Show Cause Notice was issued on 06.05.2014 for the period April 2009 to February 2011 and March 2011 to May 2013. They have been availing the Cenvat and all the details were reflected in the Monthly Return. Even the figures of nonavailment of Cenvat Credit to the extent of Rs. 2,69,26,825/- has been verified and found to be correct by the Superintendent as per his report dated 18.06.2018. As per the Appellants they have foregone Cenvat of Rs. 42 Lakhs more than what was required by them to do. Keeping these facts in view, the Consultant submits that there is total absence of suppression on their part and prays that the confirmed demand towards the extended period is required to be set aside. 14. We see considerable force in this argument since the Appellants have been filing the Returns regularly and non-availment of Cenvat of over Rs. 2.69 Crores as claimed was found to be correct by the Superintendent on 18.06.2018, after the Show Cause Notice was issued. Therefore, we hold that the any confirmed demand for the extended period is not sustainable and we set aside the such demand on account of time bar. 15. With these notings, after setting aside the OIO, we rema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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