TMI Blog2021 (10) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. - Excise Appeal No.12705 of 2018- SM - A/12441/2021 - Dated:- 11-10-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri Prasad Paranjape Shri Mohit Raval, Advocates for the Appellant Shri Vinod Lukose, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant has availed Cenvat credit pertaining to period of 2009-2010 and 2010-11 in July 2013. The case of the department is that the appellant has not availed the Cenvat credit immediately on receipt of inputs therefore, it becomes time bar accordingly, the Cenvat credit was denied. 2. Shri Prasad Paranjape and Shri Mohit Raval, advocates appeared on behalf of the appellant. Shri Prasad submits that there is no time limit prescribed for taking credit. Therefore, the department cannot prescribe the time limit. He submits that time limit was prescribed by notification no 21/2014-CE dated 11.07.2014. The present case is pertaining to the period prior to the said notification therefore, in absence of any time limit the appellant have taken the credit even though belatedly the same cannot be denied on the ground of time bar. He placed reliance on the following judgments: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. I have heard both the sides and perused the records. I find that the major issue to be decided is that the cenvat credit was availed after 01.09.2014, in respect of invoices issue prior to 01.09.2014. In the light of the amendment notification no 21/2014-CE(N.T.) whether the claim of cenvat credit is time barred. I find that though there are various decision on the issue however, the Division Bench in the case of BHARAT ALUMINIUM COMPANY LTD. V/S. JOINT COMMISSIONER OF CENTRAL EXCISE, CENTRAL TAX GOODS AND SERVICE TAX. held that the limitation of 6 months provided as per notification no 21/2014-CE(N.T.) is not applicable in cases where the invoices were issued before the notification came into effect i.e. 01.09.2014. the Delhi bench in said case has relied upon the judgment of Delhi High Court in the case of GLOBAL CERAMICS PRIVATE LIMITED AND ORS.-2019-TIOL-1129-HC-DEL-CUS. The relevant para of said judgment of BHARAT ALUMINIUM COMPANY LTD. (Supra) is reproduced below. 5. Having expressed our anguish, we note that the issue is no more res Integra. Reliance can be placed to the following decisions; (i) Indian Potash Ltd. vs Commissioner of Central GST, Meerut [2018 (10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of limitation for availing the Cenvat credit was considered. The Hon ble High court has passed the following order: 5 . We have heard Mr. Kamal Sehgal, learned counsel for the revenue. The principle question raised before us is whether a period of limitation of 6 months for availing Modvat credit during the relevant period could be introduced when no provision existed. It is relevant to mention that in the present case we are concerned with the period from 4-1-1989 to 1-2- 1991. It is significant to notice that Rule 57G of the erstwhile Central Excise Rules, 1945 prescribing limit of six months was introduced on 29- 6-1995 which had prospective effect. Therefore, it has to be concluded that no period of limitation was prescribed by any statutory provision. The question is no longer res integra. The Supreme Court in the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Ltd. - 2000 (118) E.L.T. 311 (S.C.) = (2000) 5 SCC 299 has held that the period of limitation cannot be imported by the Courts by implication in the absence of a specific provision made in that regard. The view of the Supreme Court is discernible from reading of few lines from para 13 of the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utset it may be mentioned here that except the statement of case sent by the Tribunal there is no document on record. We are proceeding to decide the present Reference on the basis of the record available before us and on the basis of the arguments advanced by the learned Counsel for the parties. Shri K.C. Sinha submitted that even though during the relevant period there was no limitation provided under Rule 57A of the Central Excise Rules the time limit provided under Section 11B of the Act would be applicable and, therefore, any amount of Modvat credit which has been availed of falls short of the actual amount which could have been availed ought to have been taken credit of within six months and not beyond it. In support of his submission he has relied upon a Division Bench of the Gujarat High Court in the case of Wipro Ltd. v. Union of India [1992 (60) E.L.T. 370]. He submitted that as the period of six months had expired the respondents would not be entitled to avail of the difference in the amount of Modvat credit. Shri Pankat Bhatia submitted that provisions of Section 11B of the Act is not applicable in a case of Modvat credit as the same is governed by Rules 57A to 57P of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing credit and adjustment of duty paid on excisable goods used in inputs in the manufacture of what is referred to as final product, and thereby enable the manufacturer to utilize the credit so allowed towards payment of duty of excise leviable on the final products, in the manner and subject to the terms and conditions stipulated therein. The manufacturer, in this case while removing the final product manufactured has adjusted against payment of excise duty on such final product a part or portion of the credit earned by him under the special scheme and what is sought to be really and in substance done is to inform the manufacturer that the adjustment he purported to have made was with an amount not legitimately or factually earned by or due to him. For this purpose, the irregularity and impropriety committed by the manufacturer in maintaining the accounts and the error in the calculation of the credit said to have been earned by him is pointed out and the manufacturer is only directed to reverse the credit so wrongly and undeservedly made by readjustment and if need be, to recover the amount equivalent to such credit wrongly availed of and disallowed by the proper officer. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions in the Act. 15.......The restricted operation of the provisions contained in Section 11A is found inherently in built due to the specification of the various categories of cases enumerated in the provision itself to be dealt with. The scheme of Modvat introduced for the first time in 1986 did not consider it necessary either to have its own period of limitation in built in the Rules nor has the enforcement of the scheme been made subject to Section 11A of the Act. The fact that even when an amendment was made on 6-10-1988, it was prospective in nature and the amendment was not given any retrospective effect indicates the intention unmistakably that the subsequent amendment should have no impart on the construction to be placed on the provisions as it existed before such amendment. The further fact that the amendments to Rule 57-I had its own pattern of limitation and method of computation of such limitation also would militate against the manner of construction adopted by the decisions of the High Courts other than that of the Gujarat High Court. 6 . In the case of Dai IchiKarkaria Ltd. (supra) the Apex Court has held as follows : 17. It is clear from thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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