2023 (1) TMI 450 - AT - Central Excise
CENVAT Credit - input services - pre-shipment charges (received after the Let export order by Customs) and terminal handling charges in respect of export of goods - right to choose an option to reverse the amount under Rule 6(3) of Cenvat Credit Rules when they have not specifically exercised any such option before such transaction - invocation of second proviso to Section 11AC (1) of Central Excise Act, 1944 - disputed period April 2016 to June 2017 - CBEC Circular No. 999/6/2015-CX dated 28.02.2015 - HELD THAT:- It is seen from the above that Circular presumes that after the Let export order there is no activity undertaken by the exporter and therefore no credit is available. On this ground Cenvat credit on pre-shipment charges has been denied - In the instant case the appellants continued possession even after Let Export order as is apparent from the fact that they managed Inspection and handling of goods. In view of above, the Circular is not applicable. The appeal on this count is allowed.
Whether the Adjudicating Authority has discretion to choose which method of compliance with the requirement of Rule 6 of Cenvat Credit Rules, 2004 is to be followed by the assessee or not? - HELD THAT:- There is no authority in law which gives Revenue to exercise such discretion. There is plethora of decisions which says that discretion of choosing method of compliance with Rule 6 is exclusively with the assessee. In these circumstances the impugned order on this count, cannot be sustained. Therefore, the impugned order remanding the matter to the lower authority to quantify the amount to be reversed is modified to the extent that reversal will be done as per the choice of method of compliance of the appellant in terms of Rule 6 of Cenvat Credit Rules, 2004.
As the issue regarding invocation of second proviso to Section 11AC (1) of Central Excise Act, 1944, has not been pressed, the appeal on that count is not allowed.
Appeal disposed off.