2025 (5) TMI 1750 - AT - Central Excise

Availing credit of duty paid on inputs and capital goods as well as the credit of service tax paid on input services in terms of the provisions of CENVAT Credit Rules 2004 - Segregation of services used between trading activity and manufacturing activity - monthly statutory ER-1 and ST-3 returns duly - reversal of credit attributable exclusively to trading activity - demand along with interest and penalty - extended period for recovery - HELD THAT - It is not the case that the appellants are only importing and selling Coil Formers IDM-12 etc. and are not manufacturers of final products. Had that been the case the revenue could have alleged that CENVAT Credit rules do not envisage availing of credit of service tax paid on input services received for purchase and sale of goods by a dealer/trader. However this is not the case of the Revenue. The appellants submit that the Rules envisage a person who is a manufacture of final products cum service provider manufacturer of final products cum service provider cum seller of goods etc. We observe that in the present case the issue involved is whether the entire quantum of CENVAT Credit availed on input services can be denied where some services have been used towards trading. We observe that trading activity as an exempted service under Rule 2(e) of CENVAT Credit Rules 2004 has been inserted only w.e.form 01.04.2011. Thus we observe that for the period prior to 01.04.2011 trading cannot be considered as an exempted service. The question of reverse of CENVAT Credit will arise only when it is established that the appellant has been providing dutiable and exempted services and availed CENVAT Credit in respect of input services which are used exclusively for providing exempted output services. In such cases where the appellant has provided both dutiable and exempted services the provisions of Rule 6 has to to be invoked to quantify the reversal of credit required. We observe that in the impugned order it is categorically held that Rule 6 of the CENVAT Credit is not applicable in this case. Since trading activity as an exempted service under Rule 2(e) of CENVAT Credit Rules 2004 has been inserted only w.e. form 01.04.2011. Thus we observe that for the period prior to 01.04.2011 there is no requirement for reversal of credit availed on input services even if part of the said input services are used for trading activity prior to 01.04.2011. Further we the Appellant has suo moto reversed CENVAT Credit amounting to Rs. 22, 534/- along with interest of Rs. 2, 903/- that is exclusively used for the trading activity during the relevant period. Such reversal was made on 04.12.2009 i.e. prior to the issuance of the underlying SCN dated 28.01.2011. The quantification of such reversal is also duly supported by a CA certificate. We observe that the issue is no longer res integra inasmuch as the Hon ble CESTAT has consistently held that there is no provision for disallowance of credit availed prior to 01.04.2011 availed on service tax paid on input services which also were utilized for trading activity. We observe that the entire proceedings have been initiated against the Appellant in order to deny the CENVAT Credit under Rule 2(l) and Rule 3 of the CENVAT Credit Rules 2004 by invoking Rule 14 of the Credit Rules merely because the Appellant along with its primary activity of manufacturing ferrite products carried out trading activity which during the relevant period. Therefore it was held that since the law does not provide for any mechanism to reverse such CENVAT Credit attributable to an activity that is neither a manufacturing activity nor a service the complete CENVAT Credit availed on input services has been denied. Further we observe that the Appellant has duly reversed the credit attributable to the trading activity along with interest it would be construed as if the Appellant has not availed any credit on such trading activity. In this regard reliance is placed on the decision of the Hon ble Supreme Court in the case of Chandrapur Magnet Wires (P) Ltd. v. Collector of Central Excise Nagpur 1995 (12) TMI 72 - SUPREME COURT . In the instant case we observe that the Department has neither established as to how the CENVAT Credit is not admissible to the Appellant nor invoked Rule 6 of Credit Rules. Thus we observe that in a case where the Department has failed to establish that CENVAT Credit is not admissible and Rule 6 also not being applicable the hold that he entire proceedings initiated by invoking Rule 14 of the Credit Rules is void-ab-initio and the impugned Order is liable to be set aside. Thus we hold that the denial CENVAT Credit confirmed in the impugned order is legally not sustainable and hence we set aside the same. Since the appellant is eligible to avail the credit the question of demanding interest or imposing penalty does not arise and hence we set aside the same. In the result we set aside the impugned order and allow the appeal filed by the appellant with consequential relief if any as per law.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether the entire CENVAT Credit availed on service tax paid on input services can be denied on the ground that the appellant did not bifurcate the credit attributable to manufacturing activity and trading activity.

2. Whether "trading" activity prior to 01.04.2011 can be treated as an exempted service under the CENVAT Credit Rules, 2004, thereby mandating reversal of credit attributable to trading activity.

3. Whether the Department was justified in invoking Rule 14 of the CENVAT Credit Rules, 2004 for recovery of the entire credit without establishing inadmissibility or applicability of Rule 6 of the said Rules.

4. Whether the appellant's suo-moto reversal of credit attributable exclusively to trading activity along with interest prior to issuance of the Show Cause Notice (SCN) absolves it from further liability.

5. Whether the extended period for recovery of credit can be invoked when the appellant has been filing statutory returns disclosing the availment of CENVAT Credit.

Issue-wise Detailed Analysis:

1. Denial of entire CENVAT Credit due to lack of bifurcation between manufacturing and trading activities

The relevant legal framework includes the CENVAT Credit Rules, 2004, especially Rules 2(l) and 3 which define "input services" and eligibility to avail credit on input services used in or in relation to manufacture of final products. The appellant undisputedly manufactures final products (Ferrite Core and Ferrite Powder) and also carries out trading activity. The Department disallowed the entire credit on the ground that the appellant did not bifurcate the credit between manufacturing and trading activities.

The Tribunal noted that the Rules envisage a manufacturer who may also be a service provider or trader, and that mere carrying out of trading activity cannot be a ground for denial of credit on input services used in manufacture. The Department did not allege that the appellant was not a manufacturer or that the input services were not eligible as "input services". Hence, the denial of entire credit without proper basis was not justified.

The Tribunal applied the law to facts by observing that since the appellant is a manufacturer and the credit relates to input services used in manufacture, credit cannot be denied merely because some input services were also used for trading.

Competing arguments from the Department were that credit was wrongly availed without bifurcation, but the Tribunal held that the law does not provide for denial of credit on this ground alone.

Conclusion: The entire denial of credit on this ground is not sustainable.

2. Status of "trading" activity as an exempted service prior to 01.04.2011

Rule 2(e) of the CENVAT Credit Rules, 2004, which defines exempted services, was amended to include "trading" as an exempted service only with effect from 01.04.2011. Prior to this date, "trading" was not recognized as a service or exempted service under the service tax law.

The Tribunal relied on precedents including decisions of the CESTAT Mumbai and Allahabad which consistently held that no reversal of credit on input services used for trading activity prior to 01.04.2011 is warranted as trading was not an exempted service then.

The Tribunal emphasized that reversal of credit under Rule 6 of the CENVAT Credit Rules is required only when input services are used for exempted output services. Since trading was not exempted prior to 01.04.2011, Rule 6 was not applicable.

The appellant had reversed a small amount of credit attributable exclusively to trading activity along with interest prior to the SCN, which was accepted as compliance.

Conclusion: No reversal or denial of credit is warranted for input services used for trading activity prior to 01.04.2011.

3. Invoking Rule 14 of the CENVAT Credit Rules for recovery of credit

Rule 14 provides for recovery of CENVAT Credit wrongly taken or erroneously refunded. The Tribunal referred to the decision of CESTAT Allahabad in L.G. Electronics India Pvt. Ltd., which held that invocation of Rule 14 requires prior establishment that credit was inadmissible or Rule 6 was applicable.

In the present case, the Department neither alleged inadmissibility of credit nor invoked Rule 6. The SCN itself stated that Rule 6 was not applicable. Hence, invoking Rule 14 for recovery was impermissible and the proceedings were void ab initio.

The appellant's contention that Rule 14 cannot be invoked without establishing inadmissibility was accepted by the Tribunal.

Conclusion: Recovery under Rule 14 without establishing inadmissibility or applicability of Rule 6 is not sustainable.

4. Effect of appellant's suo-moto reversal of credit attributable to trading activity

The appellant reversed Rs. 22,534/- of credit attributable exclusively to trading activity along with interest prior to issuance of SCN, supported by a CA certificate. The Tribunal held that such reversal should be construed as if the appellant had not availed credit on trading activity.

Reliance was placed on the Supreme Court decision in Chandrapur Magnet Wires (P) Ltd. which supports acceptance of bona fide reversal of credit.

Conclusion: The appellant's reversal absolves it from liability for credit attributable to trading activity.

5. Extended period invocation when statutory returns were filed disclosing credit

The appellant submitted that it filed ER-1 and ST-3 returns regularly disclosing the availment of CENVAT Credit. The Tribunal cited precedents that extended period for recovery cannot be invoked when statutory records are maintained and returns filed.

Conclusion: Extended period for recovery is not invokable in this case.

Significant Holdings:

"It can be seen that mention of trading as exempted service appeared in Chapter V of Finance Act, 1994 for the first time with effect from 01.04.2011. The present demand is for the period prior to 01.04.2011. Therefore, the definition of exempted services with effect from 01.04.2011 is not applicable to the period of the present show cause notice. During the period of present show cause notice, there was no whisper of trading in Chapter V of Finance Act, 1994 which deals with the provisions of law related to levy of service tax. We, therefore, hold that there was no provision of law for disallowance of CENVAT Credit availed on service tax paid on input services which also were utilized for trading activity during the relevant period."

"For recovery of CENVAT Credit under said Rule 14, first it is to be established that CENVAT Credit has been either taken wrongly or utilized wrongly. Further, the said Rule 14 has also been provided for recovery of amount mentions in sub-rule (3) of Rule 6 of CENVAT Credit Rules under Explanation 2 under sub-rule (3) of said Rule 6. ... In the present case, admittedly, there is no allegation in the said show cause notice that the appellants had taken credit of any inadmissible CENVAT Credit. Further the show cause notice dated 9-5-2011 states that Rule 6 of CENVAT Credit Rules, 2004 is not applicable in the present case. Therefore, the said show cause notice did not make out a case for invocation of provisions of Rule 14 of CENVAT Credit Rules, 2004."

"Since the appellant is eligible to avail the credit, the question of demanding interest or imposing penalty does not arise and hence we set aside the same."

The Tribunal finally held that the denial of CENVAT Credit on input services in entirety was legally unsustainable. The appellant's suo-moto reversal of credit attributable to trading activity along with interest prior to SCN issuance was accepted as compliance. Since Rule 6 was not applicable and no inadmissibility was established, invoking Rule 14 for recovery was impermissible. Consequently, the impugned order disallowing credit, demanding interest, and imposing penalty was set aside, and the appeal was allowed with consequential relief.