TMI Blog2019 (5) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, the credit accrued when CVD was paid on finished goods deemed to be cleared from home consumption when the dealers sold the goods at higher price by altering the MRP. The right to the Cenvat Credit accrued on the very day when the inputs were received. Consequently, in the present case, the Court is satisfied that the Amendment to Rule 4 (1) CCRs prescribing a time limit for claiming Cenvat Credit will not apply to the consignments in the present case where the import took place prior to the date of the amendment and the deemed manufacture took place when the MRP was altered, which also happened prior to the amendment. In other words, the CVD paid by the BRCPL will have to be permitted to be adjusted against the CE duty settled as will the service tax paid on the input services. Validity of order - non signature of all member who has heard the matter - HELD THAT:- It is indeed true that the CCESC which heard the settlement application of the GCPL comprised of three members. Therefore, an order passed by just two of them, would obviously be unsustainable in law. Appeal disposed off. - W.P. (C) 6706/2016 AND W.P. (C) 9152/2016 - - - Dated:- 24-5-2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice ( SCN ) demanding duty of ₹ 3,69, 76,139.00 and proposing penalty to many of the dealers including GCPL. 6. GCPL filed an application before the CCESC admitting duty liability of ₹ 30,79,862/- in addition to ₹ 25,00,000.00 deposited during investigation and interest liability of ₹ 16,51,695.00. GCPL also sought adjustment of CVD ₹ 2,80,42,411/-paid at the time of import and Cenvat credit of ₹ 16,10,252.00 paid as Service Tax on input services. 7. By the impugned order dated 23rd June 2016, the CCESC left the issue of claiming adjustment of duty and availability of Cenvat Credit already paid to the jurisdictional Commissioner. Also, the CCESC imposed penalties on the GCPL and its directors. 8. It is submitted on behalf of GCPL that the matter had to be entirely settled by the CCESC itself and the issue regarding the adjustment of the CVD and the service tax component ought not to have been remanded to the jurisdictional Commissioner. It is contended that the CCESC wrongly applied the decision of the Supreme Court in Osram Surya (P) Ltd. v Commissioner of Central Excise, Indore 2002 (142) ELT (SC). According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 4 (1) of the Cenvat Credit Rules, 2004 ( CCRs ), a time limit of six months from the date of issuance of the copy of the documents specified in Rule 9 (1) was imposed for claiming the Cenvat Credit with effect from 1st September 2014. It was also contended that the applicant had withheld from the Central Excise Authority, information that it had changed the MRP and cleared the final goods with an intention of evading payment of CE duty. It had not followed the proper procedure nor maintained the daily stock account and as such was not eligible to avail the credit of CVD. 11.4 The CCESC took the view that it was a well settled principle that a substantive right cannot be denied because of procedural irregularities. The fact that CVD had been paid at the time of the import, had not been denied by the Department. The law permitted the use of Cenvat Credit availed on the CVD paid at the time of import in discharging CE duty liability. Since the change in the CCRs did not have retrospective effect, the availment of Cenvat Credit as far as BRCPL is concerned, was not restricted to six months. Relying on the decision in the Osram Surya (P) Ltd. v. Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 months of the date of issue of any of the documents in sub rule (1) of rule 9. 16. It is in terms of this amendment that it was provided that the Cenvat Credit must be taken within one year of the issue of invoice for input goods or input services. 17. There is substance in the contention of the learned counsel for the Assesses in both the cases that the above amended provision cannot be given retrospective effect. As explained in Eicher Motors Ltd. v. Union of India (supra) the rule of lapse of credit lying with it unutilized on the date of amendment, cannot be applied to the goods manufactured prior to the date of the amendment. This is based on the principle that the right to adjustment of tax on final products accrues to an Assessee on the date when they paid the tax on the raw materials and that right would continue until the facility available thereto gets worked out. In fact, the judgment in Osram Surya (P) Ltd. v. Commissioner of Central Excise, Indore (supra) approvingly refers to the judgment in Eicher Motors Ltd. v. Union of India (supra). 18. In the present case, the credit accrued when CVD was paid on finished goods deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective effect. In answering the question in the negative, the Gujarat High Court held as under: 30. To sum up we are of the opinion that the benefit of credit of eligible duties on the purchases made by the first stage dealer as per the then existing CENVAT credit rules was a vested right. By virtue of clause (iv) of sub-section (3) of section 140A such right has been taken away with retrospective effect in relation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to the provision has no rational or reasonable basis for imposition of the condition. The reasons cited in limiting the exercise of rights have no co-relation with the advent of GST regime. Same factors, parameters and considerations of in order to co-relate the goods or administrative convenience prevailed even under the Central Excise Act and the CENVAT Credit Rules when no such restriction was imposed on enjoyment of CENVAT credit in relation to goods purchased prior to one year. 22. Consequently, in the present case, the Court is satisfied that the Amendment to Rule 4 (1) CCRs prescribing a time limit for claiming Cenvat Credit will not apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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