Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2019 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 246 - AT - Central ExciseDemand of Cenvat Credit - adjudicating authority has demanded the cenvat credit lying in balance as on 01.04.2008 - Rule 11(3) of Cenvat Credit Rules, 2004 - time limitation - Held that:- As per the facts of the present case, though on 01.04.2008 and unutilized cenvat credit of ₹ 9,64,05,566/- was lying but out of the said amount of ₹ 8,57,60,788/- was related to the inputs used in the manufacture of exported goods. The appellant claimed refund under Rule 5 for the said amount and the department has sanctioned that refund, the issue of refund has attained finality. Therefore, as regard this amount of ₹ 8,57,60,788/- which included in overall demand amount has been allowed by the department as refund. In the such case demand for this particular amount cannot be raised otherwise it will amount to review of refund sanction order. The adjudicating authority ignoring all the provision of Rule 6(6), demanded cenvat credit lying in balance as on 01.04.2008 invoking Rule 11(3) in isolation which is absolutely illegal and incorrect. Reversal of cenvat credit while claiming Exemption from duty - unutilized cenvat credit - credit is related to input service credit and capital goods. From the plain reading of Rule 11(3), it is clear that the provision of reversal of the credit is provided only in respect of inputs and not on input service and capital goods. The provision for lapsing of credit provided in Clause (ii) of Rule 11(3), the principle of ejusdem generis shall apply, accordingly, credit related to capital goods and input services shall not lapse, therefore, the unutilized cenvat credit lying in balance related to capital goods and input service cannot be demanded. Time limitation - Held that:- In respect of the unutilized cenvat credit, the appellant filed refund claim and the same was sanctioned by the sanctioning authority after remand by the Commissioner (Appeals), therefore, there is no suppression of fact on part of the appellant - the demand for an amount lying as on 31.03.2008, an SCN should have been issued within 1 year whereas the SCN was issued on 06.05.2009 which is clearly beyond the normal period of one year, hence the same is time bar. Appeal allowed - decided in favor of appellant.
|