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TMI Blog2025 (2) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the OIO dated 22.04.2013 or otherwise. It is also not clear as to how the impugned order holds that the amount of Rs.1,09,76,108/- was reversed. The Show Cause Notice dated 06.04.2011 was about fraudulent availment of CENVAT credit and in case the appellant has reversed the demand confirmed vide Order dated 22.04.2013, it is not understood as to how the credit of Rs.1,54,84,494/- is available as on 27.10.2010 i.e. as on the date of issue of Notification No. 10/2010 dated 27.02.2010. Both the impugned Show Cause Notice dated 27.08.2012 and the other Show Cause Notice dated 06.04.2011 have been issued well beyond 01.03.2010. Revenue, in fact, had an opportunity to take up both issues in a single Show Cause Notice. Revenue instead of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004; the respondent failed to reverse the credit of Rs.1,54,84,494/- as on 01.03.2010; the appellant continue to avail CENVAT credit, of Rs.41,71,782/-, contained in capital goods, inputs and input services, used in the manufacture of exempted goods during the period March 2010 to January 2012; further, it appeared that out of the credit of Rs.41,71,782/-, the appellants have reversed Rs.40,10,329/-, on account of clearance of aluminum scrap, capital goods and other debits; thus, the amount of duty paid of Rs.2,79,399/- for such clearances from the CENVAT credit available and the same is recoverable from the respondents; it also appeared that the appellants are required to reverse the wrongly availed credit of Rs.1,61,453/-. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in the instant SCN dated 24.08.2012 was about the fact that w.e.f. 01.03.2010 remaining CENVAT credit of Rs. 1,25,10,155/-would have lapsed, in terms of provisions of Rule11(3) of the CC Rules. he submits that the Respondent had reversed the amount of CENVAT credit of Rs. 1,09,76,108/, on 03.08.2012, under protest. However, as stipulated in Rule 11(3) of the CENVAT Credit Rules, it was obligatory on the part of respondent to first reverse the amount of Rs.29,74,339/- on 01.03.2010 attributable to inputs lying in stock as on 27.2.2010 and the remaining CENVAT credit of Rs. 1,25,10,155/- would have lapsed. Any alternative use of such CENVAT credit, was not legally permissible/available to the respondent. He relies on Choksi Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AC of the Act read with Rule 15(2) of the Credit Rules had been imposed. As the demand of Cenvat credit of Rs.1,09,76,108/- has already been confirmed vide said OI0 dated 22.4.2013, I do not find it appropriate to again confirm that part of demand on some other ground. 5. We find that in terms of Rule 11(3) of CENVAT Credit Rules, 2004, the credit lying with the assessee as on the date on which the final products have been declared exempt shall lapse. We find that Tribunal in the case of Choksi Enterprises (supra) held that: I have carefully considered the rival submissions. In the Dai Ichi Karkaria Ltd. case (supra), the Hon'ble Apex Court had clearly held that once the credit of duty has been taken rightly and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was the case of availing exemption and the exemption was based on the condition that the credit should not be availed on the inputs utilized in the manufacture of the product. In the instant case that is not the position and, therefore, the ratio of the Hon'ble Apex Court's judgment in the aforesaid case will not apply. The facts of the present case are very similar to the facts pertaining in Dai Ichi Karkaria Ltd. case (supra) decided by the Hon'ble Supreme Court and TAFE Ltd. case (supra) decided by the Hon'ble High Court of Karnataka. When the credit was taken and utilized the goods were chargeable to excise duty and, therefore, the credit was rightly taken and rightly utilized, only at a later point of time the goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order finds Rs.Rs.1,09,76,108/- to have been already reversed, we find that the issue requires further physical verification. 7. In view of the above, we find it necessary in the interest of justice that the issue, as far as the allowing of adjustment/ reversal of CENVAT credit of Rs.1,09,76,108/- is concerned, should travel back to the Original Authority to verify as to whether the respondents have reversed the above credit in terms of the Orderin- Original dated 22.04.2013 and if so, what was the actual balance lying in credit as on the date of Notification i.e 27.02.2010. We hold that such credit actually lying in balance as on 01.03.2010 shall lapse. 8 In view of the above, the appeal filed by the Revenue as far as the allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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