2010 (6) TMI 441 - AT - Central Excise

Appeal Dismissed: CENVAT Credit Claim Rejected, Appellant Directed to Reverse Amount Claimed

The Tribunal dismissed the appeal, upholding the appellate Commissioner's decision based on the interpretation of Notification No. 21/99-C.E. (N.T.) and ... Cenvat credit - CVD element of the measure of the duty excise paid by the EOU on the inputs was clearly discernible from the EOU’s invoices - Notification No. 21/99, restricted the credit on such inputs to the manufacturer of a final product - According to the restriction, the manufacturer of final product cannot claim MODVAT/CENVAT credit of any duty element other than CVD element of the measure of the duty of excise paid by the EOU on the inputs - entitlement for the manufacturer of final product was equal to the additional duty leviable on like goods if imported into India, to the extent paid on the inputs - The appellant, recipient of the inputs supplied by the EOU, cannot claim CENVAT credit in excess of this amount.The appellant took twice the said amount as CENVAT credit on the inputs for the said period. Therefore, as rightly found by the lower appellate authority, they are liable to reverse an amount of Rs. 9,99,177/- in their CENVAT account and, in the event of non-reversal, the inadmissible credit is liable to be recovered in accordance with law. Issues involved:Interpretation of Notification No. 21/99-C.E. (N.T.) regarding CENVAT credit entitlement for a manufacturing unit procuring inputs from a 100% Export-Oriented Unit (EOU).Detailed Analysis:Issue 1: Interpretation of Notification No. 21/99-C.E. (N.T.)The case involved a manufacturing unit in the Domestic Tariff Area (DTA) procuring inputs from an EOU. The EOU had paid a Central Value Duty (CVD) on the inputs, and the appellant sought to claim CENVAT credit of an amount twice the CVD paid by the EOU. The department issued a show-cause notice to reverse the excess credit claimed. The appellant argued their entitlement based on Notification No. 21/99-C.E. (N.T.), which was accepted by the adjudicating authority but later overturned by the appellate authority.Issue 2: Applicability of Notification ProvisionsThe learned SDR referred to the provisions of Notification No. 21/99-C.E. (N.T.) and Notification No. 5/94-C.E. (N.T.) to support the restriction on CENVAT credit entitlement for inputs produced by a 100% EOU. The SDR cited a previous case where it was held that the manufacturer was not entitled to credit exceeding the actual CVD paid by the EOU. The SDR argued for upholding the appellate Commissioner's decision based on these provisions.Issue 3: Comparison with Legal PrecedentsThe appellant relied on a Larger Bench decision in Vikram Ispat case, emphasizing the ambiguity in determining the CVD element of the duty paid by the EOU. However, the SDR contended that the CVD amount was clear in this case based on invoices. The Tribunal found that the decision in GTN Textiles Ltd. case was more relevant to the current situation, where the CVD amount was ascertainable, leading to the dismissal of the appeal.In conclusion, the Tribunal dismissed the appeal, upholding the appellate Commissioner's decision based on the interpretation of Notification No. 21/99-C.E. (N.T.) and Notification No. 5/94-C.E. (N.T.). The appellant's claim for excess CENVAT credit was deemed inadmissible, and they were directed to reverse the amount claimed in their CENVAT account, with potential recovery of the inadmissible credit as per the law.