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2023 (6) TMI 58 - AT - Central ExciseRecovery of credits which were excluded from the definition of ‘inputs’ through Explanation 2 of Rule 2(k) of CENVAT Credit Rules, 2004 - finding of the Larger Bench of this Tribunal in Vandana Global Ltd. giving retrospective effect was given to the Notification No. 16/2009-CE(NT) - HELD THAT:- As could be understood the entire dispute is based on the finding of the Larger Bench of this Tribunal in VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] by which retrospective effect was given to the Notification No. 16/2009-CE(NT) and accordingly Respondent-Department had issued periodic notices demanding recovery of credits which were excluded from the definition of ‘inputs’ through Explanation 2 of Rule 2(k) of CENVAT Credit Rules, 2004. However, the said judgment of the Larger Bench had been reversed by the Hon'ble High Court of Chhattisgarh in the case of same Vandana Global Ltd., [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] and learned Counsel for the Appellant Mr. Rajesh Ostwal had rightly drawn our attention to para 5, 6 & 8 of the judgment that had crystallised the issue by holding that such explanation, being not in the nature of proviso, can be considered to be operative only from the date of its insertion. On going through Annexure ‘A’ of the show-cause notice and found that along with the items mentioned in the explanation some other items, as pointed out by learned Counsel for the Appellant, are also figuring in the said Annexure ‘A’ but it would be practically imposable at our end to compute with accuracy and reference to invoices as to if confirmed demand includes also admissible credit of Rs.1,95,91,425/- for which while agreeing with the Appellant’s claim that credits in respect of all items including the items explained in Explanation 2 are admissible to the Appellant for the period from February, 2008 to 07.07.2009, non-availability of credits, as indicated in Explanation 2, to the Appellant would be effective from 07.07.2009 to June 2010, which Appellant claims to have not availed while Commissioner confirmed the entire demand including the other credits admissible to the Appellant - it is considered proper that for this limited purpose appeal could be remanded to the Original Authority. For the purpose of computation of the demand in Annexure ‘A’ of the show-cause notice for the period beyond 07.07.2009 and for consideration of the issue on merit in respect of Annexure ‘B’ containing list of other credits availed by the Appellant allegedly held in the Order-in-Original as completely inadmissible, re-adjudication is to be done on the basis of relied upon case laws cited by the Appellant here and to be placed before the Commissioner during the remand proceeding. Now coming to the issue in respect of other periods, it is undisputed fact that goods excluded under Explanation 2 annexed to Notification No. 16/2009-CE(NT) were not included by the Appellant as inputs for the purpose of availment of CENVAT Credits but in respect of other items namely concrete railway sleeper, other iron & steel items, welding electrodes, Railway track material etc. which were supposed to be admissible credits as the same issues are no more res integra, in view of series of judgments passed in Appellant’s own case in M/S. THE INDIA CEMENTS LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2013 (8) TMI 576 - MADRAS HIGH COURT]. Appeal No. E/85078/2013 is partly allowed and CENVAT Credit availed by the Appellant for the period prior to 07.07.2009 as per Annexure ‘A’ to show-cause notice is entirely admissible and CENVAT Credit in respect of items shown in Annexure ‘B’ relating to items referred in Explanation 2 of Rule 2(k) are inadmissible to the Appellant - matter is remanded to the original authority to decide the issue on merit - appeal allowed by way of remand.
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