TMI Blog2023 (8) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a condition of non-availment of Cenvat Credit but even if the Cenvat Credit is availed on the common input and input services by reversing the credit as per the Rule 6(3) the condition of the Notification shall stand complied with - the reversal of 5% of the value of exempted goods in terms of 6(3)(i) of Cenvat Credit Rules, 2004 is one of the mechanisms to expunge the Cenvat Credit availed by the assessee therefore even after taking the credit if the assessee reverse an amount, as provided in Rule 6(3) it will amount to non availment of Cenvat Credit. This issue has been considered by this Tribunal in the case of Spentex Industries Ltd [ 2016 (9) TMI 282 - CESTAT NEW DELHI ] wherein even for the period before the insertion of Rule 6(3D) of Cenvat Credit Rules, 2004, it was held that when the assessee reverse 6% of the value of the exempted goods in terms of Rule 6(3)(i) the condition of the Notification No. 30/04-CE stands complied with and demand shall not be sustainable. Thus, it is clear that the appellant by reversing 5% of the value of exempted goods in terms of Rule 6(3)(i) fulfilled the condition of Notification No. 30/2004-CE. Therefore, the appellant are legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the revenue reiterates the findings of the impugned order. 4. On careful consideration submission made by both the sides and perusal of record, we find that the benefit of exemption Notification No. 30/14-CE was denied, on the ground that the appellant have availed the Cenvat Credit on receipt of the common inputs. However, the facts is not under dispute that the appellant though availed the Cenvat Credit initially but at the time of clearance of goods under Notification No. 30/14-CE they reversed 5% in terms of Rule 6 (3)(i) of Cenvat Credit Rules, 2004. It is observed that in Rule 6, sub-Rule (3D) was included under explanation with effect from 01.04.2011 which reads as under: (3D) Payment of an amount under sub-rule (3) shall be deemed to be CENVAT credit not taken for the purpose of an exemption notification wherein any exemption is granted on the condition that no CENVAT credit of inputs and input services shall be taken. 4.1 Payment of an amount of 5% in terms of sub-rule (3D) shall be deemed to be Cenvat Credit not taken for the purpose of an exemption Notification where in any exemption is granted on the condition that no Cenvat Credit of inputs and input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempted goods will make them entitled for above said exemption. For this, they rely on sub-rule (3D) of Rule 6 of Cenvat Credit Rules, 2004, which states as under: Payment of an amount under sub-rule (3) shall be deemed to (3D) be Cenvat credit not taken for the purpose of an exemption notification wherein any exemption is granted on the condition that no Cenvat credit of inputs and input services shall be taken. 2 . The ld. Counsel for the appellant submitted that exemption availing under the above-mentioned notification has been rightly claimed by the appellants. The findings of the original authority based on the explanation (3) of Rule 3 is misconceived. The deeming provision under Rule 6(3D) covers the present situation. Even without this sub-rule when the assessee follows the procedure under Rule 6(3)(i) they are entitled for exemption. He relied on the decision of the Tribunal in Life Long Appliances Ltd. - 2000 (123) E.L.T. 1110 (Tri. - Del.) and in Sita Singh Sons (P) Ltd. - 2015 (327) E.L.T. 281 (Tri. -Del.). 3 . The ld. AR reiterated the findings of the original authority. 4 . We have heard both the sides and examined the records. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearances also in respect of exempted clearances, the appellant reversed an amount of 8% of value of exempted goods, in terms of provisions of Rule 6(3)(d). 3. The Revenue entertained a view that as the appellant had availed credit on common inputs which have been used in the manufacture of duty paid clearances as also exempted clearances and payment of 8% in terms of Rule 6(3)(d) is not sufficient, the conditions of Notification are violated. As such, the appellants are not entitled to the benefit of exemption notification. Accordingly the proceedings were initiated against them. The appellants during the course of adjudication, calculated the total credit availed by them in respect of inputs used in the manufacture of exempted final products. After taking into account the payment already made in terms of Rule 6, they debited the credit so availed by them to the extent of Rs. 11,61,409/-. The said fact is recorded in the impugned order of the Commissioner (Appeals). 4. Short issue required to be decided is as to whether such reversal of credit, either by payment of 8% in terms of Rule 6 or by debiting the same from the Cenvat credit account, would result to satisfying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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