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of <h1>Tribunal Remands Case for Reassessment; Simultaneous Availment of Benefits Under Notifications Accepted.</h1> The Tribunal set aside the impugned order and remanded the case to the adjudicating authority for further consideration. The Appellant's interpretation ... Demand of unutilized carried forward Cenvat balance invoking the Rule 11(3) (ii) of the Cenvat Credit Rules, 2004 - denial of carrying forward of balance credit on the ground that the same shall stand lapsed as the appellant have opted for simultaneous benefits under notification no. 29/2004 & 30/2004-CE - HELD THAT:- As submitted the Appellant has maintained separate records, however the adjudicating authority without verifying the said fact demanded the Cenvat of unutilsed balance while opting for exemption notification No. 30/2004-CE by invoking the Rule 11(3)(ii) of Cenvat Credit Rules, 2004. From the careful reading of the Rule 11(3), it makes clear that the sub Rule (3)(i) covers the goods that are exempt conditionally whereas sub Rule (3)(ii) would apply to those goods to which exemption under Section 5A of the Central Excise Act, 1944 is granted absolutely. The said rule provides that in any case, the Cenvat credit on stock of input lying in stock, in process and contained in finished goods needs to be reversed however, as regard the balance Cenvat credit after such reversal shall lapse only in a case where the exemption notification is absolute. In the present case, notification no. 30/2004-CE is not an absolute notification - Since the above condition contained in the notification No.30/04-CE, in such case in terms of clause (ii) of Rule 11(3) of Cenvat Credit Rules, 2004, the provision of lapsing of balance Cenvat credit will not be applicable. This issue has been considered in a catena of judgments which are cited by the appellant. However it is observed that the lower authority confirmed the demand of unutilized carried forward Cenvat balance only invoking the Rule 11(3) (ii) of the Cenvat Credit Rules, 2004 but not properly verified the factual aspects such as whether appellant have reversed the credit in respect of stocks as provided under Rule 11(3)(i) of the Rules, 2004, the claim of the appellant maintaining separate records and not availing the Cenvat credit on the input used in the goods cleared under Notification No. 30/2004-CE, etc. therefore we are of the view that the matter needs to be reconsidered. The impugned order is set aside. Appeals are allowed by way of remand to the adjudicating authority. ISSUES PRESENTED AND CONSIDERED 1. Whether CENVAT credit balances carried forward as on 01.03.2011 lapse upon the appellant opting simultaneously for notifications providing exemption (Notification No. 29/2004-CE and 30/2004-CE), having regard to Rule 11(3) of the Cenvat Credit Rules, 2004. 2. Whether Rule 11(3)(ii) of the Cenvat Credit Rules, 2004 applies to a notification which contains a proviso excluding goods for which Cenvat credit has been taken, thereby causing lapsing of carried forward CENVAT balances. 3. Whether the adjudicating authority was required to verify factual compliances under Rule 11(3)(i) (reversal in respect of inputs in stock/in process/contained in finished goods) and the appellant's maintenance of separate records and non-availment of credit on inputs used for goods cleared under the exemption notification before invoking Rule 11(3)(ii) to demand carried forward balances. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Applicability of Rule 11(3) where simultaneous notification benefits are availed Legal framework: Rule 11(3) Cenvat Credit Rules, 2004 mandates payment of an amount equivalent to CENVAT credit taken in respect of inputs lying in stock/in process/contained in finished goods where (i) manufacturer opts for exemption under a notification issued under section 5A (conditional exemption) or (ii) the final product has been exempted absolutely under section 5A; after deduction of reversal, any remaining balance shall lapse. Precedent treatment: The Court recognized that a line of authorities has considered the interplay between transitional provisions and exemption notifications permitting simultaneous availment; those decisions were relied upon by the appellant to show settled treatment. Interpretation and reasoning: The Court reads sub-rules (i) and (ii) as distinct: (i) requires reversal of CENVAT credit attributable to physical stock/process/finished goods; (ii) prescribes lapsing of any residual balance only where the exemption is absolute. Thus Rule 11(3) does not automatically cause lapsing unless the exemption notification is absolute. Ratio vs. Obiter: Ratio - Rule 11(3)(ii) causes lapsing only where the exemption notification is absolute; conditional exemptions do not trigger lapsing after reversal. Obiter - reference to supporting jurisprudence describing simultaneous availment. Conclusions: The mere opting for simultaneous benefits under the two notifications does not, by itself, cause carried forward CENVAT balances to lapse under Rule 11(3) when the exemption notification is not absolute. Issue 2 - Effect of proviso in exemption notification on application of Rule 11(3)(ii) Legal framework: Where an exemption notification contains conditions or express provisos excluding goods in respect of which CENVAT credit has been taken, the notification is not an absolute exemption for the purposes of Rule 11(3)(ii). Precedent treatment: The Court relied on established interpretations (as cited by the appellant) that conditional notifications with provisos exclude operation of lapsing where proviso preserves CENVAT credits already taken. Interpretation and reasoning: Notification No.30/2004-CE contains a proviso excluding goods in respect of which credit of duty on input or capital goods has been taken under Cenvat Credit Rules, 2004. Such a proviso renders the notification conditional, thereby removing it from the scope of Rule 11(3)(ii)'s lapsing consequence which applies only to absolute exemptions. Ratio vs. Obiter: Ratio - A proviso excluding goods with CENVAT credit makes the exemption non-absolute and prevents application of lapsing under Rule 11(3)(ii). Obiter - comparative remarks on conditional vs absolute exemptions. Conclusions: The proviso in the exemption notification prevents the notification from being treated as an absolute exemption for Rule 11(3)(ii) purposes; consequently lapsing of residual carried forward CENVAT credit cannot be invoked solely on that basis. Issue 3 - Requirement of factual verification before invoking Rule 11(3)(ii) and remand Legal framework: Application of Rule 11(3) involves factual steps: reversal (per Rule 11(3)(i)) of credit attributable to inputs in stock/in process/contained in finished goods, and fact-specific determination whether credits were claimed/availed in respect of goods cleared under the exemption notification; maintenance of separate records where simultaneous notifications are availed is a relevant factual proof. Precedent treatment: Authorities cited indicate that factual compliance (reversal, record-keeping, non-availment on notified clearances) must be examined before demand/refusal to carry forward credit. Interpretation and reasoning: The adjudicating authority invoked Rule 11(3)(ii) to demand carried forward credit but did not properly verify whether (a) reversal under Rule 11(3)(i) had been made in respect of inputs in stock/in process/contained in finished goods; (b) appellant maintained separate records; and (c) appellant refrained from availing CENVAT credit on inputs used for goods cleared under the exemption notification. These unverified factual matters are essential to application of the rule. Ratio vs. Obiter: Ratio - Proper application of Rule 11(3) requires adjudicatory verification of reversals and record-based factual predicates before lapsing/demand is confirmed. Obiter - proceduralist observations on requisite documentary verification. Conclusions: The adjudicating authority's failure to verify essential factual aspects renders its demand unsustainable; matter must be remanded for fresh adjudication with directions to examine reversal compliance, separate record maintenance, and non-availment of credit on notified clearances. Final Disposition (Court's Conclusion) The impugned order confirming demand under Rule 11(3)(ii) is set aside and the matter is remanded to the adjudicating authority for reconsideration consistent with the legal analysis above, including factual verification of reversals, records and non-availment of credit; appeals are allowed by way of remand.
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