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TMI Blog2024 (2) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 15(2) of the Cenvat Credit Rules, 2004. 2. Briefly stated facts of the case are that the appellant are holding Central Excise Registration and are engaged in the manufacture of 'P & P Medicines' falling under Tariff Heading 30049099 and 30039090 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and are availing the benefit of exemption under Notification No. 56/2002-CE dated 14.11.2002. As per Rule 2(k) of the Cenvat Credit Rules, 2004, Cenvat Credit was admissible to the appellant on their inputs namely furnace oil. However, it was noticed that during the period from April 2005 to March 2009, the appellant did not take/avail Cenvat Credit on furnace oil amounting to Rs.45,72,156/-. Further, as per para 2A of the said Notification, the exemption contained in the said Notification is available subject to the condition that the appellant first utilize whole of the Cenvat Credit available to them on the last day of the month under consideration for payment of duty on the goods cleared during the month and pay only the balance amount of duty in cash/through PLA. It is further the allegation of the Department that non-availment of Cenvat Credit resulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot available. Whereas, the appellant has been availing entire Cenvat Credit on other inputs and input service, but during the disputed period, they did not avail Cenvat Credit on furnace oil, which cannot establish that there is an intention to claim excess refund. 4.3 She further submits that the learned Commissioner ought to have understood that as there was no Cenvat Credit balance, as it was not availed, the appellant had to pay the duty in cash and thus availed the option of refund of such paid duty in PLA. The learned Commissioner also ought to understand that had been balance, why the appellant would use the working capital and pay the duty in PLA if the credit was available, however, this was not considered by the learned Commissioner, failing which the demand is proposed to be recovered on the ground of erroneously sanctioned refund. 4.4 She further submits that the learned Commissioner allowed the availment of Cenvat Credit on furnace oil, but did not consider the fact that during the month in which the said credit was availed, the refund pertaining to said month is reduced to that extent; therefore, the entire transaction is revenue neutral. However, the learned Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y complied with the conditions of the exemption Notification No. 56/2002-CE dated 14.11.2002. He further submits that the appellant is supposed to follow the procedure as prescribed in the exemption Notification which is strictly applicable to them. He also submits that the appellant did not avail the credit intentionally and paid the duty through PLA and thereafter claimed the refund of the same, which is against the conditions of the exempted Notification. He further submits that it is a settled law that the exemption Notification should be interpreted strictly and the burden of proving applicability would be on the appellant to show their case comes within the parameter of exemption Notification. In support of his submissions, he relies on the judgment of Hon'ble Apex Court in the case of Commissioner of Customs (Import) Mumbai vs. Dilip Kumar & Company - 2018 (361) ELT 577 (SC) and also on the judgment of the Tribunal in the case of CCE, Jammu vs. M/s R.B. Jodhamal & Co. Pvt Ltd - 2013 (30) STR 326 (Tri. Del.). 6. We have considered the submissions made by both the parties and perused the material on record. We find that the learned Commissioner has demanded the amount of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should utilize the Cenvat Credit available and lying in their Cenvat Credit account on the last day of the month. It clearly means that whatever is the balance lying in the Cenvat Credit account in respect of the credit taken, during the relevant month and thus available for the utilization, should be utilized but the learned Commissioner wrongly interpreted and held that even if, the Cenvat Credit in respect of some raw material is not taken in the Cenvat Register for any reason, such Cenvat Credit should also be taken into consideration as available Cenvat Credit. Here, it is pertinent to mention that para 1A of the said Notification provides the utilization of Cenvat Credit which comes into existence only after making entry in the Cenvat Credit account and till that time, it is not a Cenvat Credit. Further, the refund sanctioning authority also examined the Cenvat Credit account before sanctioning the refund and the refund will only be sanctioned of the duty paid in cash/through PLA after utilization of Cenvat Credit for the relevant month as per the condition of the Notification. It is the common practice that self credit /refund claimed on duty paid in cash/through PLA, is all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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