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TMI Blog2015 (11) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay an amount equivalent to 10% of the value of such exempted final product cleared by them in terms of Rule 6(3)(a) of CCR, 2004. Show cause notice was issued proposing demand of an amount @ 10% of the value of exempted final product which comes to Rs. 4,61,154/-, interest under Section 11AB was also demanded and both the amount was proposed to be appropriated against the payment already made. Show cause notice also proposed to impose penalty of equal amount under Rule 15(3) of CCR, 2004 read with Section 11AC of the Central Excise Act, 1944. Show cause notice was adjudicated wherein the demand of Cenvat Credit of Rs. 4,61,1154/- was disallowed and appropriated the same against amount of the equal amount already paid and interest Rs. 1,16,936/- was also confirmed and appropriated against the amount already paid. In addition, a penalty of Rs. 4,61,154/- under Rule 15(3) of CCR, 2004 read with Section 11AC of Central Excise Act, 1944 was also imposed. Aggrieved by the said order in original dated 6/1/2009 the appellant filed appeal before the Commissioner (Appeals) after payment of 25% of the penalty under Section 11AC within one month of the original order in order to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts:- (a) Shree Rama Multi Tech Ltd. Vs. Union of India[2011(267) ELTL 153 (Guj)] (b) M/s. IPCA Laboratories Ltd Vs. Commissioner of Central Excise, Indore [2015-TIOL-1097-CESTAT-DEL] (c) Commissioner of Central excise, Salem-I Vs. Burn Standard Co. Ltd.[2013(294) ELT 389(Mad.)] On the query from the bench that whether application availing benefit of retrospective amendment of Rule 6 was made to the proper officers, he submits that no such application was made however important requirement is to pay the amount equal to Cenvat Credit attributed to the input or input services used in the exempted goods alongwith interest @ 24%. Since the appellant had paid an amount which is more than required payment the condition of the retrospective amendment stand fulfilled and therefore provision of retrospective amendment of Rule 6 should be made applicable to them. 4. On the other hand, Shri. V.K. Shastri, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have considered the submissions made by both sides and perused the record. 6. I find that the appellant have availed the Cenvat credit in respect of input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of Central Excise Rules, 1944 as amended by sub-section (1), he is required to pay the amount along with interest specified thereunder and make an application to the Commissioner of Central Excise along with documents as laid down therein within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President. 15. Examining the facts of the present case in the light of the newly amended statutory scheme, in the present case the petitioners were bona fide prosecuting theremedy before this Court, hence, pending the petition they have not made any application as contemplated under sub-section (2) of Section 69 of the said Act. It is the case of the petitioners that they are not required to make any such application since they have already reversed the amount of credit taken in respect of the common input used in the manufacture of product carrying nil rate of duty. However, in the light of the amended provisions of the Central Excise Rules, 1944 it is not necessary to consider the rival contentions on merits since the amended provisions take care of a situation like the present one. 16. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts are exempted." Under the said rule where a manufacturer was engaged in the manufacture of any final product which was chargeable to duty as well as any other final product which was exempt from the whole of the duty of excise leviable thereon or was chargeable to nil rate of duty and the manufacturer took credit of the specified duty on any input (other than inputs used as fuel) which was used or ordinarily used in or in relation to the manufacture of both the aforesaid categories of final products, whether directly or indirectly and whether contained in the said final products or not, the manufacturer shall, unless the provisions of sub-rule (2) are complied with, pay an amount equal to eight per cent of the price (excluding sales tax and other taxes, if any, payable on such goods) of the second category of final products charged by the manufacturer for the sale of goods at the time of clearance from their factory by adjustment in the credit account maintained under sub-rule (3) of Rule 57G or in the accounts maintained under Rule 9 of sub-rule (1) of Rule 173G or if such adjustment is not possible for any reason, by cash recovery from the manufacturer availing of the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods chargeable to nil rate. The High Court directed the assessee to produce necessary evidence in the form of a certificate from a Chartered Accountant or a Cost Accountant for the relevant period on the amount of input credit attributable to the inputs used in or in relation to the manufacture of final product, which are exempt from the duty, along with the other documentary evidence for the relevant period. 13. We respectfully agree with the decision of the Gujarat High Court reported in 2011 (267) E.L.T. 153 (cited supra). Thus, on the line of reasoning of the Gujarat High Court, we hold that as on the date of the adjudication order and on the date of filing the appeal too, Section 73(2) itself was not available and that it was amended under the Finance Act, 2010 only during the pendency of the appeal. Thus, with the bona fide prosecution of the appeal, we do not find any justifiable ground to accept the stand taken by the Revenue that in the absence of compliance of the conditions in Section 73(2) of the Finance Act, 2010 within the six months period, the claim of the assessee has to fail. The question of such a compliance as on the date of adjudication or filing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate cenvat credit attributable to input/ input services used in or in relation to manufacture of exempted final product. The proportionate amount of cenvat credit attributable to the input/ input services used in or in relation to manufacture of exempted final product was to be calculated as per the formula prescribed in Rule 6(3A). By Finance Act, 2010, the above provisions were made retrospectively applicable. Hon'ble Gujarat High Court in case of Sh. Rama Multitech Ltd. vs UOI reported in 2011 (267) ELT 153 Guj = 2011-TIOL-940-HC-AHM-CX has held that even if a separate account have not been maintained, in view of retrospective amendment by Finance Act, 2010, a manufacturer using common inputs in or in relation to manufacture of dutiable as well as exempted final product would be entitled to reverse the proportionate cenvat credit. In view of this position, during the period of dispute the option of paying an amount equal to 10% of the sale value of the exempted goods cannot be forced upon the appellant and the appellant would be entitled to reverse the cenvat credit attributable to the inputs/ input services used in or in relation to the manufacture of the exempted final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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