2012 (7) TMI 141 - HC - Central Excise

Assessee entitled to retain CENVAT credit on HR/CR coils duty paid before 2010 circular clarification under relevant rules

The Commissioner of Central Excise, Pune Versus Ajinkya Enterprises

The HC upheld the CESTAT's decision that the assessee was entitled to retain CENVAT credit on duty paid for HR/CR coils used in producing decoiled HR/CR ... CENVAT credit of duty paid on HR / CR coils - Whether CESTAT was justified in holding that CENVAT credit of duty paid on HR/CR coils availed and utilized by the assessee for paying duty on decoiled HR/CR coils need not be reversed - Held that:- It is relevant to note that the Board in its Circular dated 7th September 2001 had only held that the activity of cutting / slitting of HR / CR coils in to sheets or strips constitutes manufacture. Admittedly, the assessee had carried on additional activities such as pickling and oiling on the decoiled HR / CR coils, which is a complex technical process involving huge investment in plant and machinery. Since these additional activities were not considered by the Board in its Circular dated 7th September 2001, the withdrawal of the said Circular cannot be a ground to hold that the activity carried on by the assessee did not constitute manufacturing activity. It is only on 24th June 2010, the Board has issued a Circular to the effect that the process of pickling does not amount to manufacture. Therefore, during the relevant period, that is, during the period from 2nd March 2005 to 31st December 2005, it could not be said that the issue was settled and that the assessee paid duty on decoiled HR/CR coils knowing fully well that the same were not manufactured goods. If duty on decoiled HR/CR coils was paid bona fide, then availing credit of duty paid on HR/CR coils cannot be faulted. Once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity does not amount to manufacture. Issues:1. Whether CESTAT was justified in holding that CENVAT credit of duty paid on HR/CR coils availed and utilized by the assessee for paying duty on decoiled HR/CR coils need not be reversed.Analysis:The dispute in this case revolves around the period from 2nd March 2005 to 31st December 2005. The assessee engaged in decoiling HR/CR coils, cutting, slitting, pickling, and oiling them as per buyer specifications. The assessee took credit of duty paid on HR/CR coils and used it to pay duty on decoiled coils at clearance, where duty paid on decoiled coils exceeded that on HR/CR coils. A show cause notice challenged this, stating decoiling did not constitute manufacture, thus no credit was allowed. The adjudicating authority upheld this, demanding Rs. 38,43,070 with interest and penalty. The Commissioner (Appeals) and CESTAT confirmed and allowed the appeal, respectively, leading to the current appeal by the Revenue.The Revenue argued that decoiling did not constitute manufacture post CBEC Circular of 2nd March 2005, thus no credit should have been taken. They claimed the assessee paid duty erroneously and sought credit regularization, rejected by the Board. However, the Court found no merit in these contentions. Until 1st March 2005, the Revenue accepted the activity as manufacturing, allowing credit based on a prior Circular. The withdrawal of this Circular on 2nd March 2005 raised the issue. Notably, additional activities like pickling and oiling were not addressed in the withdrawn Circular, and a subsequent Circular in 2010 clarified pickling did not constitute manufacture. Therefore, during the relevant period, the issue was not settled, and if duty on decoiled coils was paid in good faith, credit on HR/CR coils was justified.Moreover, the Court noted that no reversal or refund on assessment of decoiled coils was ordered, citing precedents where CENVAT credit need not be reversed if final product duty was accepted, even if the activity did not amount to manufacture. The Court found no fault with CESTAT's decision based on these grounds, dismissing the appeal without costs.