2015 (10) TMI 1338 - AT - Central Excise

Tribunal Upholds Commissioner's Jurisdiction on Cenvat Credit Reversal for Trading Activities

M/s. Lotte India Corporation Ltd Versus Commissioner of Central Excise, Pondicherry

The Tribunal upheld the demand for reversal of proportionate credit on trading activities, clarifying the Commissioner's jurisdiction under Rule 6(5). The ... Reversal of CENVAT Credit - Trading of goods - Held that:- Issue relates to demanding proportionate credit on the input service credit availed on the trading of goods. There is no doubt that the appellant is a manufacturing unit availed the credit distributed by their ISD. As regards the objection raised by the ld. Advocate on the jurisdiction of the Commissioner, Pondicherry, for raising demand on the appellant for reversal of credit under Rule 6(5) the Tribunal's decision in the case of Eveready Industries India Ltd. (2009 (8) TMI 437 - CESTAT, CHENNAI), DB of this Tribunal in Final Order has held that the Commissioner having jurisdiction of the recipient unit has a power to examine the availment of cenvat credit. In view of the above decision and also considering the fact that the lower appellate authority has confirmed only the proportionate credit and not the entire demand under Rule 6(5) on the value, prima facie, appellant do not satisfy the requirement for total waiver of pre-deposit. - stay granted partly. Issues:Reversal of cenvat credit on trading of goods, Jurisdiction of the Commissioner for demanding reversal under Rule 6(5), Applicability of proportionate credit availed on trading activities.Analysis:1. The primary issue in this appeal pertains to the reversal of cenvat credit amounting to Rs. 21,92,560, which represents the proportional credit availed on the trading of goods. The adjudicating authority upheld the demand and imposed a corresponding penalty.2. The appellant's counsel raised a preliminary objection regarding the jurisdiction of the Commissioner to issue a show cause notice on the admissibility of cenvat credit availed by the Input Service Distributor (ISD) for trading of goods. The appellant, a manufacturing unit, argued that the corporate office, which availed the credit, is not the ISD distributor and should not be held liable. The counsel also cited a precedent to support their claim that they are eligible for input service credit for the period before a relevant amendment.3. On the contrary, the Departmental Representative supported the adjudicating authority's decision, emphasizing that the proportionate cenvat credit on trading activities must be reversed regardless of the exempt status of the trading activities. The DR argued that the Commissioner has jurisdiction to demand reversal under Rule 6(5) as the appellant is not eligible for cenvat credit under Rule 3. Referring to a tribunal decision, the DR maintained that the Commissioner has the authority to recover the credit on the recipient's side.4. Upon careful consideration of the arguments, the Tribunal found that the issue primarily concerns the demand for proportionate credit on input service credit utilized for trading of goods. The Tribunal noted that the appellant, a manufacturing unit, received credit distributed by their ISD. Addressing the jurisdiction objection raised by the appellant's counsel, the Tribunal referred to a previous decision and concluded that the Commissioner has the authority to examine the cenvat credit availed. Since the lower appellate authority confirmed only the proportionate credit demand and not the entire amount under Rule 6(5), the Tribunal directed the appellant to deposit Rs. 5,00,000 within four weeks for compliance.In conclusion, the Tribunal upheld the demand for reversal of proportionate credit on trading activities and clarified the jurisdiction of the Commissioner for such demands under Rule 6(5).