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TMI Blog2024 (5) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable in the facts of the present case. This issue has been considered time and again in various judgments. This Tribunal in the case of Welspun India Ltd [ 2023 (8) TMI 177 - CESTAT AHMEDABAD] where it was held that the appellant is neither liable to reverse the accumulated Cenvat credit of ADE (T TA) nor the demand of the same is sustainable. Thus, it was held that the assessee is not required to reverse the accumulated Cenvat credit under Rule 11 (3) of Cenvat Credit Rules, 2004 when the conditional notification is availed. The order passed by the Learned Commissioner (Appeals) is legal and correct and does not require any interference there in - the impugned order is upheld - Revenue s appeal is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd - Excise Appeal No 12251 of 2014 final order dated 02.08.2023. Dai Ichi Kankaria Ltd - 1999 (112) ELT 353 (SC) M/s. Hershey India Pvt Ltd - CESTAT Delhi Tax Appeal No. 50379/2017 4. We have carefully considered the submission made by both sides and perused the records. We find that though the respondent have claimed that they are availing the exemption Notification No. 29/2004-CE as well as 30/2004- CE whereas it is the department's claim that the respondent is availing only exemption Notification No. 30/2004-CE even if it is accepted that the respondent is availing only exemption Notification No. 30/2004-CE then as per settled legal position, the respondent's accumulated unutilized Cenvat credit balance shall not lapse by availing said exemption notification in terms of Rule 11 (3) of Cenvat Credit Rules, 2004 which is reproduced below:- "RULE 11. Transitional provision. [(3) A manufacturer or producer of a final product shall be required to pay an amount equivalent to the CENVAT credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit in case the final product of the appellant is exempted, particularly when credit was taken and the final product was dutiable. The sole ground of department to demand Cenvat credit of accumulated ADE(T&TA) is invocation of Rule 11(3) of Cenvat Credit Rules. The said Rule 11(3) has come into effect only with effect from 01.03.2007 therefore any credit availed prior to that and carried forward the same cannot be recovered by invoking Rule 11(3) as the said Rule does not have retrospective effect. It shall be applicable only in a case when any exemption notification is availed on or after 01.03.2007 when the Rule 11(3) came into effect. In the present case, the appellant's final product was exempted as well as credit of ADE(T&TA) was lying during the period much before the insertion of Rule 11(3) in Cenvat Credit Rules. Therefore the said Rule cannot be applied and consequently ADE(T&TA) cannot be demanded. The very same issue has been considered by this Tribunal in the case of IBM India Private Limited (supra), wherein the Tribunal has passed the following order:- "19. As far as the first question of reversal of Cenvat credit availed on inputs lying unutilized in the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the successor entity is, at best, far fetched. The satisfaction of AC or DC or otherwise should also be based on same cogent reasons. We find no reasons or evidence because of which the Asst. Commissioner or Deputy Commissioner has come to the conclusion that the inputs or capital goods have not been transferred to the successor unit when the entire business itself has been transferred at the very same premises to the successor entity. In view of the above, we find that demand on this account also must fail. 22. In view of the above, appeal is allowed and the impugned order is set aside with consequential benefits, if any." The issue in hand has been addressed by the Tribunal in the above decision whereby it was held that Rule 11(3) of Cenvat Credit Rules, 2004 though provides for reversal of unutilized Cenvat credit but the same cannot be applied retrospectively in the absence of specific provision under the statute. 6. The Hon'ble Karnataka High Court also considered the similar issue in the case of CCE, Bangalore vs. Gokuldas Intimate Wear (supra) wherein the Hon'ble High Court has taken following view after framing substantial question of law:- "4. This appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or (ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the Said amount from the balance of CENVAT credit, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export, or for payment of service tax on any output service, whether provided in India or exported." 7. Therefore, it is clear from the aforesaid, Rule that till 1-3-2007, the assessee was entitled to benefit, of the Cenvat credit in respect of inputs contained in the work in progress and semi finished products. The said amendment is prospective in nature. It comes into effect from only 1-3-2007. In the instant case, the period is anterior to 1-3 2007, which has no application. Therefore, the substantial questions of law raised in this appeal are answered in favour of the assessee and against the revenue." 7. In view of above decisions and the findings given above, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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