TMI Blog2017 (8) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the two Auto Coners to Guna Plant during 2001-02, the right course would have been to debit the full credit of ₹ 5,62,949/- pertaining to the transferred of Auto Coner and to take its full credit at the Guna Plant. It is settled position in law that when a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise. I find that after the detection by audit, the appellants have taken the position that both the plants of the assessee have taken the total credit of ₹ 22,51,796/- only (Rs. 11,25,898/- each per Auto Coner), thus making the total credit so availed equal to due amount of credit. However, that proposition is made in disregard of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to their another unit i.e. Guna Plant in 2001-02, the year in which it was received in the factory of the appellants, by debiting full amount of duty involved thereon i.e. ₹ 11,25,898/-. As the capital goods on which 50% of the balance credit taken during 2002-03 was not available, the Revenue felt that credit of ₹ 5,62,949/- (50% of the total duty of ₹ 11,25,898/-) taken by the appellants was not admissible to them. A show cause notice was issued to the appellants. In the adjudication, the demand of ₹ 5,62,949/- was confirmed along with interest and imposition of penalty of equivalent amount. The appellants went in appeal before Commissioner (Appeals). The Commissioner (Appeals) rejected their appeal, aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of Commissioner (Appeals) and referred to Rule 4(2)(b) contending that after taking credit of ₹ 11,25,898/- in the first year, they could not take the credit of ₹ 11,25,898/- again because only one Auto Coner was left in the Baddi Plant. He relied upon the following case laws in his support: (i) CCE, Pondicherry Vs. Hindustan Lever Ltd - 2010 (257) E.L.T. 326 (Mad.) (ii) Sri Krishna Alloys Vs. CCE, Salem - 2006 (200) E.L.T. 158 (Tri.-Chennai) 5. Heard both the sides and examined the records. 6.1 I find that the appellants had admittedly taken 50% of the credit on both the Auto Coners during the year 2001-02 (on 29.01.2002) in terms of the provisions of Rule 4(2)(a) of CCR. This has been verified from cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit, the appellants have taken the position that both the plants of the assessee have taken the total credit of ₹ 22,51,796/- only (Rs. 11,25,898/- each per Auto Coner), thus making the total credit so availed equal to due amount of credit. However, that proposition is made in disregard of the Cenvat Credit Rules. In this regard, I find force in the contention of Ld. Commissioner that the appellants could not have reversed 100% credit of duty paid on one Auto Coner, which would have been violative of Rule 4(2)(a) of CCR, 2001. In this regard, his findings reproduced below are very pertinent: So far as utilization of Cenvat Credit on removal of capital goods as such is concerned, it is observed that Rule 3(4) of CCR, 2001 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taken in first year and capital goods transferred to another unit under Central Excise invoice Period of dispute 2001-2002 - Submission that proviso to Rule 4(2) of Cenvat Credit Rules, 2001, providing for 100% credit when capital goods cleared in same year, coming into force from 1-3-2002 and available even prior to 1-4-2000, was also available for interregnum period by applying Sections 21 and 24 of General Clauses Act, 1897 HELD : During relevant financial year, benefit extended only to avail 50% of Cenvat Credit No scope for invoking provisions of Sections 21 and 24 ibid when infact Section 38A of Central Excise Act, 1944 specifically stipulates as to applicability of provisions prevailing on relevant date Supreme Court in Kolhapur C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year without any requirement of the capital goods having to be in possession and use of manufacturer do not have retrospective effect Rule 4 of Cenvat Credit Rules, 2004. [para 2] In the light of above discussed facts and settled proposition of law, I find that Cenvat credit of ₹ 5,62,949/- is not allowable to the appellant. 7. The fact of removal of one Auto Coner to Guna Plant, which took place within 2 days of taking credit, was not brought to the notice of the Central Excise Authorities and it was detected only during the course of audit. Hence, the order of Commissioner (Appeals) with regard to penalty is also sustainable. 8. In view of the above, there is no infirmity in the order of Commissioner (Appeals) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
