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2023 (12) TMI 1061 - AT - Central ExciseReversal of CENVAT Credit - Appellants have availed Cenvat Credit both for dutiable and exempted goods - separate Cenvat Credit records and status were not maintained - with effect from 01/03/2011, the supplies to Railways brought under the concessional rate of 1%/2% Excise Duty subject to the condition that no Cenvat Credit is availed - Extended period of Limitation - HELD THAT:- The Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] has held that if the Cenvat Credit taken is reversed, the same would amount to non-availment of Cenvat Credit. As per the factual details available and seen from the records, it is found that the Department itself does not dispute after proper verification by the Superintendent that the Appellant has maintained separate accounts and has not availed the Cenvat Credit to the extent of Rs. 2,69,26,825/- and they have availed Cenvat of Rs. 54,46,566/- only in respect of three or four common inputs - there are no justification for confirmed demand of Rs. 35,39,80,370/- for the period 2009-10 to 28/02/2011. For the same reason, the confirmed demand of Rs. 49,43,41,259/- for the period 01/03/2011 to May 2013 is not legally sustainable. However, verification is required to be done about the Cenvat Credit taken for the common inputs to the extent of Rs. 54,46,566/-, a figure which is being agreed to by the both sides - it is directed that the Adjudicating Authority to apply the procedure prescribed under Rule 6 of CCR, 2004, for proportionate reversal of Cenvat Credit. For arriving at this figure, Gross Total Credit available, total credit taken, credit taken for common inputs, total turnover, exempted turnover etc. are required to be considered as per the CCR Rules, 2004. Extended period of limitation - Appellant submits that there is total absence of suppression on their part and prays that the confirmed demand towards the extended period is required to be set aside - HELD THAT:- There are considerable force in this argument since the Appellants have been filing the Returns regularly and non-availment of Cenvat of over Rs. 2.69 Crores as claimed was found to be correct by the Superintendent on 18.06.2018, after the Show Cause Notice was issued. Therefore, it is held that the any confirmed demand for the extended period is not sustainable and such demand on account of time bar is set aside. Matter remanded to the Adjudicating Authority for the limited purpose of quantifying the Cenvat Credit to be reversed on account of common inputs for the normal period only after excluding the demand for the extended period - appeal allowed by way of remand.
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