2016 (8) TMI 387 - AT - Central Excise

Reversal of cenvat credit - Rule 6(3) read with Rule 6(3A) of CENVAT Credit Rules (CCR) 2004 - clearance of two cranes at nil rate of duty - availed benefit of Notification No.33/2005-C.E. dated 8.9.2005 as amended vide Notification No.38/2005-C.E dated 30.12.2005 - not maintained separate books of accounts and also did not exercise the option as provided in Rule 6(3) read with Rule 6(3A) of the CCR 2004. Held that - admittedly there is no intimation given by the appellant informing the exercise of his option. The argument of the Department is that when the appellant has not intimated his option in writing then the appellant is bound to pay the duty amount calculating under the first option. According to me this argument is devoid of merit because the said Rule does not say anywhere that on failure to intimate the manufacturer/service provider would lose his right to avail second option of reversing the proportionate credit. Sub-Rule (3A) is only a procedure contemplated for application of Rule 6(3). Consequently the argument of Revenue is that the appellants exercising option is mandatory and on its failure the appellant has no other option but to accept and apply Rule 6(3)(i) and make payment of 5%/10% of the sale price of the exempted goods or exempted services is not acceptable because the Rule does not lay down any such restriction and this has been held in various judgments. It has been held in one judgment that the condition in Rule 6(3A) to intimate the Department is only a procedural one and that such procedural lapse is condonable and denial of substantive right on such procedural failure is unjustified. Therefore the demand raised by the Revenue is not legal and proper. Moreover the demand raised by the Revenue is also hit by limitation as the appellant reversed the pro-rata credit with interest on 31.7.2010 itself and communicated to the Department whereas the show-cause was issued only on 13.3.2012 which is beyond the period of one year and the allegation of the Department regarding suppression of fact is also not tenable because the appellant has disclosed these facts in their periodical ER1 returns filed by them. Therefore the impugned order is not sustainable on merit as well as on limitation and therefore set aside. - Decided in favour of assessee

The core legal questions considered in this appeal revolve around the interpretation and application of Rule 6(3) and Rule 6(3A) of the CENVAT Credit Rules, 2004 (CCR, 2004), specifically:

Whether the appellant was obligated to pay duty at the prescribed percentage rate under Rule 6(3)(iii) due to failure to maintain separate accounts and failure to exercise the option under Rule 6(3A) by intimation to the Department;
Whether the failure to intimate the Department regarding the option exercised under Rule 6(3A) results in forfeiture of the right to reverse proportionate credit and mandates payment of duty under the first option;
Whether the demand raised by the Revenue is barred by limitation, particularly given the appellant's prior reversal of proportionate credit with interest before issuance of the show-cause notice;
Whether the allegation of suppression of facts by the appellant is sustainable, thereby justifying invocation of extended period of limitation;
The applicability of relevant judicial precedents on the procedural and substantive aspects of Rule 6(3) and (3A) and the effect of non-compliance with procedural requirements on substantive rights.

Issue-wise detailed analysis is as follows:

Interpretation and Application of Rule 6(3) and Rule 6(3A) of CCR, 2004

The legal framework under scrutiny is Rule 6 of the CCR, 2004, which governs the reversal of CENVAT credit in cases where inputs or input services are used partly for manufacture of dutiable goods and partly for exempted goods or services. Rule 6(3) provides three sub-rules:

Sub-rule (i) prohibits credit on inputs/input services used exclusively for exempted goods/services;
Sub-rule (ii) mandates maintenance of separate accounts if common inputs/input services are used;
Sub-rule (iii) caters to situations where separate accounts are not maintained, offering two options: (a) payment of duty at prescribed rates (10% or 5% for manufacturers, 8% or 6% for service providers, with rates amended w.e.f. 7.7.2009), or (b) reversal of proportionate credit as per Rule 6(3A).

Rule 6(3A) prescribes the procedure for reversal of credit, including the requirement of written intimation to the Department regarding the option exercised.

The Court's interpretation emphasized that the procedural requirement of intimation under Rule 6(3A) is not a condition precedent to the substantive right to reverse credit. The Court rejected the Revenue's contention that failure to intimate the Department results in mandatory application of the first option (payment of duty at prescribed percentage). The Court held that the Rule does not explicitly impose such a forfeiture of rights on procedural non-compliance. This interpretation aligns with binding precedents cited by the appellant, which held that procedural lapses under Rule 6(3A) are curable and do not justify denial of substantive rights.

Key precedents relied upon include:

A recent decision of the CESTAT, Hyderabad, in Aster Pvt. Ltd. vs. CCE, which is fully applicable;
Decisions such as Sri Sarvaraya Sugars Ltd. vs. CCE, Ruchi Infrastructure Ltd. vs. CCE, BEML Ltd. vs. CCE, and others, which consistently held that non-intimation under Rule 6(3A) is procedural and does not disentitle the manufacturer/service provider from reversing proportionate credit;

The Court applied these principles to the facts, noting that the appellant had reversed the proportionate credit with interest prior to issuance of the show-cause notice, albeit without formal intimation. The Court found no legal basis to deny the appellant the benefit of the second option under Rule 6(3)(iii)(b).

Limitation and Allegation of Suppression

The Court analyzed the issue of limitation, noting that the appellant had reversed the proportionate credit with interest on 31.7.2010 and communicated the same to the Department. The show-cause notice was issued on 13.3.2012, beyond the normal one-year period prescribed for demand. The Revenue's invocation of extended limitation by alleging suppression was examined critically.

The Court found that the appellant had disclosed the clearance of the two cranes in their periodical ER1 returns, negating any charge of suppression of facts. Since the issue primarily involved interpretation of Rule 6 of CCR, 2004, the Court held that the extended period of limitation could not be invoked. The Court relied on precedents such as CCE vs. Manishreni Ferro Alloys and Suvidha Engineers India Ltd. vs. CCE, which support the principle that where the facts are disclosed and no suppression is established, limitation cannot be extended.

Treatment of Competing Arguments

The Revenue argued that non-intimation under Rule 6(3A) mandated payment of duty at the prescribed percentage and that the reduction of rate from 10% to 5% could not be applied retrospectively. The Court rejected these contentions, holding that the reduction in rate applied from 7.7.2009 and that the appellant's reversal of credit was made in accordance with the law applicable at the relevant time.

The Court also rejected the Revenue's contention that failure to maintain separate accounts necessitated payment under the first option, emphasizing that the appellant had exercised the second option substantively by reversing credit, and procedural non-compliance did not nullify this.

Conclusions

The Court concluded that:

The procedural requirement of intimation under Rule 6(3A) is not a condition precedent to availment of the second option under Rule 6(3)(iii)(b);
The appellant's reversal of proportionate credit with interest, though not intimated in writing, was valid and entitled them to the benefit of the second option;
The demand raised by the Revenue is not sustainable on merit;
The demand is also barred by limitation as the show-cause notice was issued beyond the prescribed period and no suppression was established;
The impugned order setting aside the original order in favor of the appellant is unsustainable and is accordingly set aside, allowing the appeal.

Significant holdings and core principles established include the following verbatim excerpt of crucial legal reasoning:

"According to me, this argument is devoid of merit, because the said Rule does not say anywhere that on failure to intimate, the manufacturer/service provider would lose his right to avail second option of reversing the proportionate credit. Sub-Rule (3A) is only a procedure contemplated for application of Rule 6(3). Consequently, the argument of Revenue is that the appellants exercising option is mandatory and on its failure, the appellant has no other option but to accept and apply Rule 6(3)(i) and make payment of 5%/10% of the sale price of the exempted goods or exempted services is not acceptable, because the Rule does not lay down any such restriction and this has been held in the judgments cited supra. It has been held in the judgment cited supra that the condition in Rule 6(3A) to intimate the Department is only a procedural one and that such procedural lapse is condonable and denial of substantive right on such procedural failure is unjustified."

This judgment reaffirms the principle that procedural non-compliance under Rule 6(3A) does not extinguish substantive rights under Rule 6(3)(iii)(b), and that limitation provisions cannot be extended absent suppression or concealment. It clarifies the correct interpretation of Rule 6 concerning the reversal of CENVAT credit and the consequences of failure to maintain separate accounts or to give intimation.

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