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TMI Blog2024 (10) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... JAIPUR [ 2019 (3) TMI 776 - CESTAT NEW DELHI] and M/S. GKN DRIVELINE (INDIA) LTD. VERSUS CCE, DELHI-III [ 2023 (9) TMI 1131 - CESTAT CHANDIGARH] , held ' erroneous availment of cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 could be recoverable only after insertion of the recovery provision to the said Rule by insertion of an Explanation through amending Notification No.3/2013-CE(NT) dated 01.03.2013 as amended only w.e.f. 01.03.2013.' Following the above precedent and since period of recovery pertains to 2006-07 to 2008-09, the impugned order is set aside - Appeal allowed. - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS R BHAGYA DEVI, MEMBER (TECHNICAL) Mr. Syed Peeran, Advocate for the Appellant Mr. Rajiv Kumar Agraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the appellant does not have a policy to write off completely the value of the stock of store and spare parts fully but maximum 95% if the stock is more than 8 years old. It is his contention that the provision to reverse credit on the value of inputs in the event it is written off partially, came into existence w.e.f. 01.03.2011; hence the same cannot be made applicable retrospectively for the period in question. In support, they have relied on the following judgements: M/s Ericsson India Pvt Ltd v. CCE, Jaipur - 2019 (3) TMI 776-CESTAT New Delhi Sanghavi Engineering vs. CCE, Hyderabad - 2013 (297) ELT 277 (Tri.-Bang.) Owens Corning India Ltd. vs. Commissioner Of Central Tax, Raigad, Commissioner Of Central Tax GST, Raigad - 2023 (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded period of limitation which cannot be sustained as the appellant has not suppressed any facts from the Department and the partial written off of the value has been disclosed in the balance sheet. 4. Learned AR for the Revenue reiterates the findings of the learned Commissioner. He submits that the appellant has failed to establish that the inputs in question have been used in relation to the manufacture of the final products. 5. Heard both sides and perused the records. 6. Undisputed facts the case are that on the basis of the company policy, the appellant had written of value of slow moving and non-moving stock based on the market value of the inputs and to a maximum of 95% if it is more than 8 years. The learned advocate has vehementl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o service tax liability for the subsequent period. However, we find that erroneous availment of cenvat credit under Rule 3(5) of the Cenvat Credit Rules, 2004 could be recoverable only after insertion of the recovery provision to the said Rule by insertion of an Explanation through amending Notification No.3/2013-CE(NT) dated 01.03.2013 as amended only w.e.f. 01.03.2013. The said explanation reads as under:- Cenvat Credit Rules, 2004 Amendment In exercise of the powers conferred by section 37 of the Central Excise Act, 1944 (1 of 1944) and section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rule to amend the CENVAT Credit Rules, 2004, namely :- 1. (1) These rules may be called the CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was introduced vide Notification No. 3/2013 dated 01.03.2013 was from 01.03.2013 vide which it was provided that if the manufacturer of goods or the provider of output service fails to pay the amount payable under sub-rules (5), (5A), and (5B), it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken. This recovery mechanism introduced from 01.03.2013 cannot be made applicable from the retrospective date and it can be only prospective and this issue was considered in various decisions cited (supra) by the Tribunal wherein it was held that when there was no recovery mechanism before 01.03.2013, therefore, no recovery can be affected and accordingly the present proceedings initiated under Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value, prior to 01.03.2013. 9. In this view of the matter, we hold that the issue has arisen due to change of opinion on the part of the Revenue, but there is no suppression of facts on the part of the appellants. Further, we find that no amount was due to be reversed under rule 3(5B) on the date of issue of show cause notice. Accordingly, we hold that larger period for limitation cannot be invoked and no show cause notice was required to be issued. Accordingly, we hold that impugned order is not sustainable, and is set aside. Appeal is allowed with consequential relief. In this view of the matter, we set aside the demand, penalty and interest Though the Revenue has filed appeal against the decision before the Hon ble High Court of Rajastha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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