TMI Blog2023 (10) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. No evidence has been produced by Revenue to show that the said goods were not used in the manufacture of final product. In this background the Rule 3(5B) itself cannot be invoked for recovery of cenvat credit. The primary condition for invoking Rule 3(5B) is non use of inputs/ capital goods on which credit has been taken. The instant case is only of non-payment / waiver of the price which the appellant were require to pay to the vendor. It is apparent that the recovery provisions for amount recoverable under Rule 3(5B) was introduced only w.e.f. 01.03.2013. The present dispute is for the period prior to the said date. In these circumstances, notification of Rule 14 to recover these amounts is doubtful. There are no merit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of final products or the provision of [output] services, the manufacturer or output service provider, as the case may be, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of these rules.] Learned counsel for the appellant pointed out that it is not a case that the imported goods on which credit has been taken have been written off. Learned counsel made a strong argument that the said materials on which credit was taken have been used in the manufacture of final products and therefore, their goods do not get hit by mischief of Rule 3(5B) of Cenvat Credit Rules, 2004. He pointed out that the said rule requires that the input or the capital goods should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r capital goods before being put to use on which Cenvat Credit has been taken, is written off or such provisions made in Books of Account, the manufacturer or service provider is required to pay an amount equal to credit so taken. However, when the inputs or capital goods are subsequently used, the amount so paid can be re-credited in the account. 5. Learned Counsel also relied on the decision of Tribunal in the following cases: 2023 TIOL 875 CESTAT AHD MS GKN Driveline India Ltd. 2019 TIOL 3279 CESTAT DEL Udaipur Cement Works Ltd. 2019 TIOL 1356 CESTAT DEL- Ericsson India Pvt Ltd. 6. Learned Authorized Representative relies on the impugned order. 7. We have considered the rival submissions. We find that Rule 3(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking Rule 3(5B) is non use of inputs/ capital goods on which credit has been taken. The instant case is only of non-payment / waiver of the price which the appellant were require to pay to the vendor. 8. This interpretation is also supported by the proviso to the said rule which clearly indicates that once the goods are used for manufacture of final products or for provision of taxable services, credit can be allowed. 9. Moreover, it is seen that Tribunal in the case of GKN Driveline India Ltd. in para 14 as observed as follows: 14. It is pertinent to note that the identical issue was considered by the Division Bench of the Tribunal in the case of Ericsson India Pvt. Ltd. cited (supra) wherein the Tribunal has held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of issue of show cause notice. Accordingly, we hold that larger period for limitation cannot be invoked and no show cause notice was required to be issued. Accordingly, we hold that impugned order is not sustainable, and is set aside. Appeal is allowed with consequential relief. In this view of the matter, we set aside the demand, penalty and interest. Though the Revenue has filed appeal against the decision before the Hon'ble High Court of Rajasthan, but no stay has been granted by the Hon'ble High Court. 10. It is apparent that the recovery provisions for amount recoverable under Rule 3(5B) was introduced only w.e.f. 01.03.2013. The present dispute is for the period prior to the said date. In these circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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