2019 (10) TMI 680 - AT - Central Excise

Tribunal rules in favor of appellant on CENVAT Credit issue, applying amendment retrospectively

The tribunal ruled in favor of the appellant, holding that the demands against them were not sustainable. It was determined that the amendment to Rule 16, ... Levy of Central Excise Duty - final products viz Zarda Scented Tobacco packed in pouches - Rule 6 of the Chewing Tobacco Rules - availability of CENVAT Credit - applicability of N/N. 17/2010 – CE (NT) dt. 13.04.2010 - HELD THAT:- The Chewing Tobacco and Unmanufactured Tobacco Packaging Machines (Capacity Determination & Collection of Duty) Rules which came into effect from 08.03.2010 were made applicable to Zarda scented Tobacco also. The chewing tobacco rules provided for availment of cenvat credit on chewing tobacco procured in bulk and used in packing of Tobacco pouches with the aid of packaging machines. When the Chewing Tobacco and Unmanufactured Tobacco Packaging Machines (Capacity Determination & Collection of Duty) Rules also become applicable to Zarda scented tobacco, it was just obvious that the Zarda scented tobacco came at par with chewing tobacco in terms of levy of duty as well as availment of cenvat credit. The Appellant’s representation to the authorities led to explicit mention of Zarda Scented Tobacco in Rule 16 so as to make it eligible for availing cenvat credit. In our view when the Chewing tobacco rules were made applicable to the Zarda Scented Tobacco, it explicitly meant that whatever duty liability and manner of levy alongwith facility of credit was applicable on chewing tobacco was also applicable to Zarda scented tobacco. Pertinently when the legislation wanted to keep Zarda scented tobacco in same category as chewing tobacco, it also meant that the cenvat credit as available to chewing tobacco would also be available to Zarda scented Tobacco. Extended period of limitation - HELD THAT:- There is no reason to allege malafide intention/ suppression or deliberate action on the part of Appellant to avail alleged ineligible cenvat credit. From the facts it is apparent that the Appellant were under bonafide belief that being their goods at par with the chewing tobacco, the cenvat credit is available to them. They even made representation with the department and ultimately the goods become eligible for cenvat credit. Therefore there is no reason to hold the Appellant responsible of any deliberate act to evade duty or avail ineligible cenvat credit. Penalty - HELD THAT:- Even if it was assumed that the Appellant are not eligible for credit than too, there was no reason to impose penalty upon them - Penalty set aside. Appeal allowed - decided in favor of appellant. Issues Involved:1. Eligibility for CENVAT Credit on Zarda Scented Tobacco.2. Retrospective application of Rule 16 amendment.3. Double demand of CENVAT Credit and Central Excise Duty.4. Imposition of penalty for availing CENVAT Credit.Issue-wise Detailed Analysis:1. Eligibility for CENVAT Credit on Zarda Scented Tobacco:The appellant, engaged in the manufacture of Chewing Tobacco and Zarda Scented Tobacco, availed CENVAT Credit on Zarda Scented Tobacco purchased in bulk. They argued that the final product, Zarda Scented Tobacco packed in pouches, was liable for duty, thus entitling them to CENVAT Credit. Initially, the Chewing Tobacco Rules did not explicitly cover Zarda Scented Tobacco, leading to a dispute. The appellant contended that the omission of Zarda Scented Tobacco in Rule 16 was inadvertent and that the subsequent amendment to include it should be considered retrospective.2. Retrospective Application of Rule 16 Amendment:The appellant argued that the amendment to Rule 16, which explicitly included Zarda Scented Tobacco, should be applied retrospectively. They cited various judgments to support their claim that the legislative intent was to allow CENVAT Credit for Zarda Scented Tobacco from the beginning. The tribunal agreed, stating that the amendment was meant to correct an obvious omission and should be treated as retrospective. The tribunal referenced the Apex Court's judgment in Govt. of India Vs. Indian Tobacco Association, which supported the view that amendments made to correct omissions should relate back to the original enactment.3. Double Demand of CENVAT Credit and Central Excise Duty:The appellant contended that the demand for both the reversal of CENVAT Credit and the payment of Central Excise Duty amounted to double taxation. The tribunal agreed, stating that once the CENVAT Credit is reversed, the duty paid using that credit stands legalized. The tribunal found the dual demand to be illegal and unsustainable. They noted that the appellant had already reversed a portion of the CENVAT Credit, further reducing the amount in dispute.4. Imposition of Penalty for Availing CENVAT Credit:The appellant argued that there was no malafide intention or suppression of facts on their part. They had acted under a bona fide belief that they were eligible for CENVAT Credit and had disclosed the credit availed in their statutory returns. The tribunal agreed, finding no deliberate act to evade duty or avail ineligible credit. They cited judgments, including Pushpam Pharmaceuticals Co. Ltd., to support the view that penalties should not be imposed in cases of bona fide belief and full disclosure.Conclusion:The tribunal held that the demands made against the appellant were not sustainable. They found that the substitution of Rule 16 was intended to be retrospective, thus allowing the appellant to avail CENVAT Credit on Zarda Scented Tobacco. The tribunal also found the double demand of CENVAT Credit and Central Excise Duty to be illegal. Additionally, they held that no penalty was imposable as the appellant had acted under a bona fide belief and had made full disclosures. Consequently, the impugned orders were set aside, and all appeals were allowed with consequential reliefs.