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TMI Blog2023 (4) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Advocate for the respondent and perused the averments set out in the affidavit filed in support of the application for condonation. We find sufficient cause has been shown for not preferring the appeal within the period of limitation. Accordingly, the application for condonation of delay is allowed and the delay in filing the appeals is condoned. These appeals filed by the revenue under Section 35G of the Central Excise Act, 1944 (the 'Act' in short) are directed against the final order dated 2nd February, 2022 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (the Tribunal) by which the appeals filed by the appellant/revenue were dismissed. The Revenue has raised the following substantial questions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being Special Leave Petition (Civil) Diary No(s).23441/2020 and the said issue is pending consideration by the Hon'ble Supreme Court ? We have heard Mr. Bhaskar Prasad Banerjee, learned standing counsel assisted by Mr. Tapan Bhanja, learned Advocate for the appellant/revenue and Mr. Saurabh Bagaria, learned Counsel assisted by Mr. Rites Goel, learned Advocate for the respondent/assessee. The moot question involved in these appeals is whether the respondent has fulfilled his obligation under Rule 6(2) of the Cenvat Credit Rules, 2004 by taking only 85% of the credit on the common input service. The revenue had issued show cause notice alleging that the assessee has cleared final products manufactured by them without payment of duty but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the alleged contravention of the provisions of the Cenvat Credit Rules, 2004 did not occur. Therefore, the question of recovery of Cenvat Credit attributable to the exempted finished goods does not arise. The Commissioner held that there is no evasion of duty on the part of the assessee, hence penalty and interest as proposed in the show cause notice is not liable to be imposed and, therefore, the proceedings initiated pursuant to the show cause notices are to be dropped and, accordingly, the same were directed to be dropped. The revenue was on appeal against such order before the Tribunal. The Tribunal framed the following questions for consideration while examining the appeals: (a) Are the SCNs demanding an amount of 10% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the cost accountant/chartered accountant giving details of quantity of input used in the manufacture of exempted goods value thereof and Cenvat Credit taken on this inputs to be submitted at the end of the year. It is not in dispute that the assessee had submitted a chartered accountant's certificate dated 15th November, 2010. The Commissioner while examining the said certificate found that the certificate shows the financial year wise/month wise percentage of cenvat credit paid both on input and input services vis-à-vis the percentage of duty paid, clearance and non-duty paid clearance covering the period from 2006-07 to 2009-10 which include the duty paid bonded and NRD dispatches. Therefore, the Commissioner held that non-avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal has been filed against the said decision before the Supreme Court. As pointed out by us earlier, we have taken up for consideration question no.(c) which had been framed by the Tribunal and the issue as to whether the decision in Tiara Advertising (supra) has to be examined or not will arise only if question no.(c) (supra) is decided in favour of the revenue. Therefore, we revert back to the factual position to examine the correctness of the order passed by the learned Tribunal. The Tribunal examined Rule 6(2) of the Rules and noted compliances that are required to be done by an assessee where common input or input services are utilised. The Tribunal examined the Chartered Accountant's certificate issued by the person who audited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Department having issued such communication, it goes without saying that they have now embarked upon an exercise to examine the contents of the Chartered Accountant's certificate. This would indirectly mean that the contest which was made before the Tribunal with regard to the Chartered Accountant's certificate does not any longer survive and it is only the contents thereof, sufficiency or insufficiency of the material contained in the certificate which is now being pursued by the Department. Therefore, technically we would not be wrong in observing that the revenue has accepted that portion of the order passed by the Tribunal which answered question no.(c). In the light of the above discussion, we are of the considered view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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