9911796707
TMI Blog2024 (8) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case are that the Respondent (M/s. Jumbo Roofings & Tiles, Guwahati), is a manufacturer based in the State of Assam and availed exemption in terms of Notification No. 20/2007-C.E. dated 25.04.2007, as amended. The department alleged that the Respondent has wrongly availed and utilized CENVAT Credit amounting to Rs.64,52,554/- representing Additional Duty of Customs and CVD on imported goods in the month of September 2011, in contravention of Rule 3(4) of the CENVAT Credit Rules, 2004 (hereinafter referred to as 'CCR') and Para 2B of Notification No. 20/2007-C.E. dated 25.04.2007. 2.1. During the scrutiny of the E.R.-1 Returns filed by the Respondent, it was noticed that the Respondent had imported inputs as well as capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the input credit availed by the Respondent pertained to four bills of entry, for which they took the credit of CVD on the date of receipt of the goods, but forgot to take the credit of additional duty of customs due to ignorance; when they realized the mistake, they availed the CENVAT Credit in the month of September, 2011 and thus it was held that there was no violation of the provisions of the CENVAT Credit Rules, 2004. 2.4. Aggrieved against the dropping of the demands, Revenue has filed this appeal. 3. In their grounds of appeal, the appellant-Revenue made the following submissions: - i. The ld. adjudicating authority has erred in dropping the proceedings initiated against the Respondent in the impugned Notice when there is a clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty liability in specific terms to be followed by the manufacturer unit to get duty exemption (refund) on finished goods. Conditions laid down therein were mandatory in nature. Further, Board's Circular under F.No. 101/04/2008-CX.3 dated 04.06.2009 describes that condition of first utilizing the whole amount of credit before payment in cash as a substantive condition for availing the benefit of the said notification. Thus, there was no question of revenue neutrality at all when the said notification prescribed pattern, manner and sequence of discharge of duty liability which was not fulfilled by the Respondent. v. Further, the intention of the said notification to refund the amount that was discharged through the PLA (in cash) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember, 2011. 4.1. The Respondent also submits that they started paying duty in cash in November 2010 by utilizing the CENVAT Credit available in their books of accounts and paid the balance amount in cash for the period from November, 2010 to August, 2011 and claimed refund for those months under Notification No. 20/2007-C.E. dated 25.04.2007, as amended. Accordingly, there is no violation of condition 2B of the said notification. 4.2. It is the submission of the Respondent that the Show Cause Notice sought to deny the credit by relying on the C.B.E.C. Circular F. No. 101/04/2008-CX.3 dated 04.06.2009 stating that in cases where Cenvat Credit is not taken or utilized on a few invoices, the amount of such non-availed credit is to be dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a given financial year, the CENVAT credit shall be taken only for an amount not exceeding 50% of duty paid on such capital goods in the same financial year. We are of the view that this sub-rule restricts the availability of CENVAT credit on capital goods to a maximum of 50% of duty paid on the said capital goods and this sub-rule does not make it mandatory that a manufacturer must avail the credit of 50% duty on the capital goods immediately on receipt of the capital goods. We do not find any other provision under the CENVAT Credit Rules, 2004 which debars a manufacturer from taking the credit if by some reason they fail to avail the credit immediately on receipt of the capital goods. Therefore, we are inclined to accept the Respondent's s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944. As discussed in foregoing paras the alleged credits taken by the Respondent belatedly were not in contravention of any of the provisions of CENVAT Credit Rules, 2004. the Credit availed can be considered as irregular only if it is taken in contravention of any of the provisions of CENVAT Credit Rules, 2004. Since the credit taken is not found irregular, we are of the view that Rule 14 of CENVAT Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 cannot be applied for recovery of the credit in this case. 6.4. In view of the above discussion, we do not find any merit in the submissions made by the Revenue that the Respondent has availed wrong/irregular credit. We also do not find any mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
