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TMI Blog2024 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... as raw materials in Form B of the Central Excise Registration of the appellant - the appellant had incorrectly availed the credit of duty on goods which were not inputs for their final product. The appellant should be given the opportunity to present all documentary evidences to substantiate their claim of having reversed the Cenvat Credit at the time of clearance of the Aluminium Rod, Aluminium Wire and PVC Compound at the time of clearance as such before the adjudicating authority, who will decide the matter afresh. It is noted that the appellant has claimed that they have paid the interest liable for the period from the date of availment to the date of reversal. The impugned order has already appropriated the said interest amount. However, liberty is given to the appellant to produce documents and establish the correctness of the said interest amount paid and so appropriated. The impugned order is set aside - appeal allowed by way of remand. - HON BLE MR. SOMESH ARORA , MEMBER ( JUDICIAL ) And HON BLE MS. HEMAMBIKA R. PRIYA , MEMBER ( TECHNICAL ) Ms. Priyanka Goel , Advocate for the Appellant Shri M. K. Chawda , Authorized Representative for the Department ORDER HEMAMBIKA R. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was adjudicated vide the impugned order dated 30.08.2019 wherein the Commissioner confirmed the demand of Rs. 5,25,67,213/- along with interest and equal amount of penalty. Hence, the appellant has filed the present appeal. 3. Learned Counsel for the appellant submitted that the point of dispute in the present appeal is that the appellant had wrongly availed Cenvat Credit on the goods which are not inputs as defined in the Cenvat Credit Rules, 2004. However, it is an admitted fact that the appellant had cleared said goods as such as per Cenvat Credit Rules, 2004, on payment of duty equal to the credit. Once the audit team had pointed out, the appellant calculated the interest liability amounting to Rs. 1,23,601/- and paid the said interest liability as well. He further submitted that there is no act of evasion of duty but only a procedural breach. The learned counsel stated that what was most important fact in the case was that the appellant had already debited the whole credit taken as such, under Cenvat Credit Rules, 2004 at the time of clearances of such input. As such, the demand confirmed by the learned Adjudicating Authority in the impugned order is bad in the eye of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the present show cause notice had arisen after investigations initiated by the Department and the fact of the appellant availing fraudulent Cenvat Credit would not have been detected. He stated that the appellant had availed and utilized Cenvat Credit of Rs.2,19,82,733/- (Rupees Two Crore Nineteen Lakhs Eighty Two Thousand Seven Hundred and Thirty Three Only) by resorting to fraud and suppression of facts with an intent to enrich themselves with inadmissible Cenvat credit, which otherwise was not admissible to them. He submitted that the extended period under Section 11A(4) of Central Excise Act, 1944 is invokable for recovery of Cenvat Credit of Rs.2,19,82,733/- under Rule 14 of the Cenvat Credit Rules, 2004. Thus, Cenvat credit Rs.2,19,82,733/- (Rupees Two Crore Nineteen Lakhs Eighty Two Thousand Seven Hundred and Thirty Three Only) availed utilized is not admissible to the appellant and is liable to be disallowed from the appellant under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 1944. 4.1 The ld. AR contended that the notice under Section 11A(1) states that the incorrect availment of Cenvat credit was the result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, unless the context otherwise requires,- . (k) input means (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or (iii) all goods used for generation of electricity or steam 39[or pumping of water] for captive use; or (iv) all goods used for providing any 40[output service; or]; 41[(v) all capital goods which have a value upto ten thousand rupees per piece .] but excludes- (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; [(B) any goods used for (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of service portion in the execution of a works contract or construction service as listed under clause (b) of section 66E of the Act;] 42[(C) capital goods, except when,- (i) used as parts or components in the manufacture of a final product; or (ii) the value of such ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy the assessee cannot make a debit entry in the credit account before removal of the exempted final product. If this debit entry is permissible to be made, credit entry for the duties paid on the inputs utilised in manufacture of the final exempted product will stand deleted in the accounts of the assessee. In such a situation, it cannot be said that the assessee has taken credit for the duty paid on the inputs utilised in the manufacture of the final exempted product under Rule 57A. In other words, the claim for exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of the duty paid on the inputs used in manufacture of these goods . 7.1 In view of the above judgment which has been followed by this Tribunal is several decisions, viz., Linkwell Telesystems Pvt Ltd vs Commissioner of Central Tax, CGST, Secunderabad vide Final Order A/30040/2022 dated 11.03.2022 in respect of Excise Appeal No. 2215 of 2012; M/s. Vineet Polyfab Pvt Limited vs Commissioner, Surat, vide Final Order no A/11109 / 2019 dated 11.7.2019 in Excise Appeal No. 10676 of 2019, and the settled point of law, we hold that the demand of Cenvat Credit on such goods cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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