TMI Blog2018 (5) TMI 1654X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfillment of condition, as laid down in the said circular. It is apparent on the face of record that the department directed the appellant to take registration and to pay the duty and also refused to grant exemption benefit. In this event, the findings of the Commissioner that the appellant was entitled to avail the benefit of exemption is not tenable, as it is altogether against evidence. The Order made in conscious violation of pleadings and law is a perverse Order, which is exactly happened in the present case and thus, such order cannot be sustained in the eye of law. Reversal of CENVAT credit - manufacturing of exempted goods - contravention of Rule 6(1) and 6(4) of Rules 2004 - Held that:- the issue was academic as the assessee was not seeking refund of duty and there was no need to reverse the credit of duty. Apart from that, the department once accepted the duty, it cannot deny the Cenvat Credit utilized for clearance of the said duty paid finished products. - When the department entertained the view during the relevant period that the appellant is not entitled to get the exemption benefit, Rule 6(1) and Rule 6 (4) of the Rules, 2004 cannot be invoked - Apart from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leging that the appellant had wrongly availed and utilized Cenvat Credit on the clearance of final products i.e. PSC Slippers during the period 01.11.2014 to 31.07.2016, in contravention of Rule 6(1) and Rule 6(4) of the Cenvat Credit Rules, 2014. By the impugned Order, the Learned Commissioner of Central Excise has confirmed the demand of Cenvat Credit of ₹ 5,22,87,970/- alongwith interest and also imposed penalty of ₹ 5,22,879/- under Rule 15(1) of the Rules, 2004 read with Section 11AC (1) (a) of the Central Excise Act, 1944. Hence, the appellant has filed this appeal before the Tribunal. 3. The Learned Advocate on behalf of the appellant submitted that the appellant paid the duty as per direction of the Assistant Commissioner of Central Excise vide letter dated 22.12.2014. It is submitted that the department had taken a view that the goods were not exempted and therefore, Rule 6(1) of the Cenvat Credit Rules, 2004 cannot be invoked. It is further submitted that the appellant paid the duty as per direction of the department and availed Cenvat Credit and therefore, the Cenvat Credit cannot be denied as the duty was not refunded to them. In support of above submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as per exemption notification. There are several correspondences between the appellant and the department on this issue. The Assistant Commissioner vide letter dated 02.06.2015, reiterated that the appellant is not eligible for exemption benefit. It is seen that the Joint Commissioner (Tech.) of the office of the Commissioner of Central Excise, Commissionerate, Jodhpur vide letter dated 14.03.2016 forwarded the copy of the letter dated 02.06.2015 of the Assistant Commissioner of Central Excise for necessary action. 7. Thereafter, CBEC vide Circular dated 06.07.2016 clarified the scope of word site appearing in the Notification No. 12/2012-CE. It is revealed from the said Circular dated 06.07.2016 that the representation have been made from the trade regarding the difficulties being faced in availing of benefit of exemption applicable to goods manufactured at the site of construction, for use in construction work at such site, vide Serial No. 186 of Notification No. 12/2012-CE (Supra). The Board Circular was issued particularly for Project, which runs long distance such as construction of road, laying of pipeline, laying of railway track etc. The Board has clarified that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. L T Limited and therefore, the appellant had wrongly availed Cenvat Credit under Rule 6(1) and 6(4) of the Rules, 2004. In our considered view, such findings of the Commissioner are totally perverse. It is apparent on the face of record that the department directed the appellant to take registration and to pay the duty and also refused to grant exemption benefit. In this event, the findings of the Commissioner that the appellant was entitled to avail the benefit of exemption is not tenable, as it is altogether against evidence. The Order made in conscious violation of pleadings and law is a perverse Order, which is exactly happened in the present case and thus, such order cannot be sustained in the eye of law. 10. The another aspect of this matter is that the Cenvat Credit is denied for contravention of Rule 6(1) and 6(4) of Rules 2004. Rule 6 provides obligation of manufacturer of dutiable and exempted goods. Rule 6(1) says that the CENVAT Credit is not available on such quantity of input or input service, which is used in exempted goods. In the present case, the department directed the appellant to pay the duty, as it not entitled to get benefit of exemption notification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory of the assessee on payment of duty has neither been reversed nor it is held that the assessee is entitled to refund of duty paid at the time of clearing the decoiled HR/CR coils. In these circumstances, the CESTAT following its decision in the case of Ashok Enterprises - 2008 (221) E.L.T. 586 (T), Super Forgings - 2007 (217) E.L.T. 559 (T), S.A.I.L. - 2007 (220) E.L.T. 520 (T) = 2009 (15) S.T.R. 640 (Tribunal), M.P. Telelinks Limited - 2004 (178) E.L.T. 167 (T) and a decision of the Gujarat High Court in the case of CCE v. Creative Enterprises reported in 2009 (235) E.L.T. 785 (Guj.) has held that once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity docs not amount to manufacture. Admittedly, similar view taken by the Gujarat High Court in the case of Creative Enterprises has been upheld by the Apex Court [see 2009 (243) E.L.T. A121 ] by dismissing the SLP filed by the Revenue. 11. In view of the above discussion and analysis, we do not find any merits in the impugned Order. Accordingly, the same is set aside and the appeal filed by the appellant is allowed. [Dictated and pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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