2018 (11) TMI 1443 - AT - Central Excise

Tribunal grants appeal, reverses order on Cenvat credit ruling.

The Tribunal allowed the appeal, setting aside the impugned order and providing consequential relief to the Appellant in accordance with the law. The ... Irregular availment of CENVAT Credit - input materials were removed as such by the appellant under the cover of invoices, on payment of an amount equal to the credit taken in terms of Rule 3 (5) of the Cenvat Credit Rules, 2004 - It is the case of the Revenue that since the assessee did not use the inputs in or in relation to the manufacture of finished goods and accordingly, the services used in procuring the inputs would not qualify for availing cenvat credit. Held that:- The issue is no more res-integra in view of the various decisions of the Hon’ble High Courts and the Tribunal. This Bench of the Tribunal in the case of Seven Star Steels Ltd. Vs. Commr. Of Central Excise, Customs & S. Tax, BBSR II [2013 (5) TMI 119 - CESTAT KOLKATA] by relying upon the decision of the Tribunal in the case of Chitrakoot Steel & Power Pvt. Ltd. Vs. Commissioner [2007 (11) TMI 135 - CESTAT, CHENNAI] had allowed the appeal filed by the assessee. CBEC vide Instruction F.No.96/85/2015/CX.I dated 07.12.2015 has observed, on the reversal of cenvat credit in respect of services paid on the input services that Rule 3(5) of the CENVAT Credit Rules, 2004 does not provide for reversal in respect of input services for a reason. Input services are consumed once the inputs and capital goods are received in the factory. Thus on receipt of inputs and capital goods, the associated input services have to be considered as consumed within the factory and become a cost to the business. Demand for reversal o the input services credit, when such input services cannot be reused, unlike inputs and capital goods which are available for reuse would not be fair to the trade. Appeal allowed - decided in favor of appellant. Issues:1. Applicability of recovery provisions under Rule 14 of Cenvat Credit Rules, 2004.2. Interpretation of statutory provisions regarding imposition of penalty under Section 11AC of the Central Excise Act, 1944.3. Eligibility of availing Cenvat credit on input services used in procurement and transportation of input materials.4. Reversal of Cenvat credit on input services under Rule 3(5) of Cenvat Credit Rules, 2004.5. Application of the principle regarding reversal of Cenvat credit on input services in relation to removal of inputs from the factory.Analysis:1. The issue of the applicability of recovery provisions under Rule 14 of Cenvat Credit Rules, 2004 was raised by the Appellant, arguing that these provisions do not apply to cases where credit was availed against prescribed documents for procurement and transportation of input materials. The Appellant contended that the extended period of limitation and penalty under Section 11AC of the Central Excise Act, 1944 were not warranted as the issue pertained to the interpretation of statutory provisions.2. The Advocate for the Appellant relied on various decisions and argued that the recovery provisions were not applicable in this case as the credit was availed against prescribed documents. The Advocate contended that the imposition of penalty under Section 11AC of the Central Excise Act, 1944 was unwarranted due to the nature of the issue being related to the interpretation of statutory provisions.3. The Revenue maintained the position of the lower authorities, asserting that the Appellant did not use the inputs in or in relation to the manufacture of finished goods, thus questioning the eligibility of availing Cenvat credit on input services used in procurement and transportation of input materials. The Revenue argued that the services used in procuring the inputs would not qualify for availing Cenvat credit.4. The issue of reversal of Cenvat credit on input services under Rule 3(5) of Cenvat Credit Rules, 2004 was central to the case. The Appellant had cleared inputs to its sister unit and availed Cenvat credit on services used for procurement and transportation. The Revenue contended that since the inputs were not used in manufacturing finished goods, the services used in procurement did not qualify for Cenvat credit.5. The Tribunal referred to past decisions where it was established that the reversal of Cenvat credit on input services was not required under Rule 3(5) of the Cenvat Credit Rules, 2004. Citing precedents, the Tribunal concluded that the credit availed on input services did not need to be reversed when inputs were removed from the factory. The Tribunal allowed the appeal, setting aside the impugned order and providing consequential relief to the Appellant in accordance with the law.