2025 (11) TMI 972 - HC - Customs

Accumulated Cenvat credit can be used to pay countervailing duty by a 100% EOU at debonding; cash not required

HC held that accumulated Cenvat credit can be used to pay countervailing duty payable by a 100% EOU at debonding. The court followed its earlier decision ... Payment of amount of the counter-veiling duty which is payable by EOU unit, at the time de-bonding 100% EOU - can be paid from the accumulated Cenvat credit or not - HELD THAT:- The ssue is akin to the one, which is already answered by this Court in the judgement dated 18.12.2024 in the case of Messrs Dishman Pharmaceuticals and Chemicals Pvt. Ltd. [2015 (12) TMI 1211 - GUJARAT HIGH COURT] where it was held that 'It will be seen on plain reading of section that “any amount of credit found to be admissible to the claimant shall be refunded to him in cash”. Therefore, there can be no arguments to the contrary that the legitimately availed Cenvat credit could not be used for the payment of duties and therefore, the demand of the respondents to pay the excise duty on goods that would be manufactured in the concerned manufacturer plant of the petitioner -company after debonding has to be rejected outright.' Thus, since the tribunal had placed reliance on the interim order passed by this Court in the aforementioned decision of this Court in the case of Messrs Dishman Pharmaceuticals and Chemicals Pvt. Ltd., and the same has become final, the present appeal stands dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether the amount of countervailing duty/customs duty payable at the time of de-bonding of a 100% EOU may be discharged by the unit by utilizing legitimately availed CENVAT credit. 2. Whether the liability to pay duty on de-bonding is a customs liability under Section 28 of the Customs Act or an excise liability under Section 3 of the Central Excise Act and the consequences of such classification for mode of discharge. 3. Whether Rule 3(4) of the Cenvat Credit Rules (and related provisions such as Rule 17 of Central Excise Rules and sub-rules restricting utilisation) precludes utilization of CENVAT credit for payment of duties at the time of de-bonding. 4. Applicability of post-enactment transitional provisions (Chapter XX of CGST Act, in particular Section 142(6)(a)) to admissible CENVAT credit and its refund/usage implications. 5. (Raised but not determinative) Whether the show-cause notice was barred by limitation (period of limitation/extended period) given the dates involved. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Use of CENVAT credit to discharge duty at de-bonding Legal framework: Cenvat Credit Rules (Rule 3(4) and allied provisions) create an enabling mechanism for utilization of CENVAT credit; Central Excise Act/Rules and Customs Act provide for duties on goods and mechanisms for their discharge at de-bonding. Precedent treatment: The Court follows and applies the earlier decision of this Court in the Dishman Pharmaceuticals matter which held that a manufacturer/EOU legitimately entitled to CENVAT credit may utilize that credit to discharge excise liabilities at debonding. The Court also relies on Supreme Court authorities (Eicher Motors; Collector v. Dai Ichi Karkaria) and earlier state decisions (Indsur Global; CCE v. Shilpa Copper Wire Industries) establishing that legitimately availed credit is indefeasible and may be used to meet excise liabilities. Interpretation and reasoning: The Court reasons that an EOU is a manufacturer for purposes of the CENVAT scheme and, therefore, subject to the same rights to avail and utilize CENVAT credit as DTA manufacturers. The enabling character of Rule 3(4) and the principles in precedent cases establish that once credit is legally availed, it can be used to discharge duty liabilities; denying that use at debonding would impermissibly deprive the assessee of rights accrued under the earlier regulatory scheme and would be contrary to established authorities recognizing the credit as 'as good as tax paid' and indefeasible unless irregularly taken. Ratio vs. Obiter: Ratio - legitimately availed CENVAT credit can be utilized by an EOU to discharge duties exigible on debonding; administrative directions requiring payment in cash only are unlawful to the extent they deny utilization of admissible CENVAT credit. Obiter - subsidiary observations about policy or comparative functioning under different regimes ancillary to the principal holding. Conclusions: The Court answers in favour of the unit: the accumulated, legitimately availed CENVAT credit can be used to pay the amount equal to duty exigible at the time of de-bonding. Issue 2 - Characterisation of liability: excise duty versus customs duty and effect on mode of payment Legal framework: Section 3 of the Central Excise Act (excise liability) and Section 28 of the Customs Act (customs demand) were invoked by the parties to frame the nature of the liability. Relevant notifications governing EOUs (duty-free imports) and the de-bonding process determine which statutory head applies. Precedent treatment: The Court refers to earlier holdings that for purposes of duty foregone on duty-free procurements, the excise demand mechanism and CENVAT regime apply to manufacturers/EOUs and that payment/adjustment of such excise liabilities may be effected under excise rules using credit legitimately availed. Interpretation and reasoning: The Court notes the respondent's contention that the liability is under the Central Excise Act and not directly recoverable under Section 28 of the Customs Act; regardless of labels, the practical consequence is that the excise mechanism allows utilization of CENVAT credit to discharge the equivalent duty. The tribunal's inquiry regarding whether countervailing duty at de-bonding can be paid from CENVAT is therefore addressed within the excise/CENVAT framework. Ratio vs. Obiter: Ratio - categorization that the duty obligation in the de-bonding context falls to be discharged in the manner permitted by excise/CENVAT rules; obiter - detailed parsing of statutory labels where not outcome determinative. Conclusions: The Court treats the liability as one dischargeable under excise/CENVAT principles and concludes that the mode of discharge permitted by those rules (i.e., utilization of legitimately availed CENVAT credit) applies. Issue 3 - Validity and scope of rules/limitations impeding utilization of CENVAT credit (Rule 3(4), Rule 17, sub-rules restricting utilisation) Legal framework: Rule 3(4) of the Cenvat Credit Rules (an enabling provision) and other rules/regulatory provisions that prescribe manner/conditions for utilization of credit were examined. Earlier statutory amendments and rules restricting credit utilisation in certain circumstances were considered alongside constitutional challenges to overly harsh restrictions (Article 14/19 considerations noted in precedent). Precedent treatment: The Court relies on Indsur Global where certain restrictive provisions were struck down as unreasonable and violative of Article 14 when they prevented utilisation of legitimately availed credit; Eicher and Dai Ichi support the indefeasibility of validly taken credit and limit the scope of retrospective application of restrictive rules. Interpretation and reasoning: The Court holds that Rule 3(4) is enabling and does not preclude utilization by EOUs; legislative or administrative attempts to force payment in cash despite admissible credit would violate the settled principle that legally availed credit may be used in discharge of duty. The Court further notes that post-GST transitional provisions reinforce the entitlement to cash refund of admissible credit. Ratio vs. Obiter: Ratio - administrative directions or rule-interpretations that bar utilisation of admissible CENVAT credit at de-bonding are unsustainable; Obiter - comments on the precise limits of Rule 17 or other procedural rules where not directly determinative. Conclusions: Rule 3(4) operates as an enabling provision; restrictions preventing use of legitimately availed credit for payment at de-bonding cannot be sustained. Issue 4 - Effect of GST transitional provisions (Section 142(6)(a)) on admissible CENVAT credit Legal framework: Section 142(6)(a) of the Central Goods and Services Tax Act (transitional provisions) provides that proceedings relating to CENVAT credit under existing law continue and that any amount of credit found admissible shall be refunded in cash notwithstanding contrary provisions of existing law (with certain exceptions). Precedent treatment: The Court treats the GST transitional provision as confirming and reinforcing the position that legitimately admissible CENVAT credit must be recognized and, where found admissible, refunded in cash under transition, thereby negating arguments that such credit cannot be used or converted. Interpretation and reasoning: The plain language of Section 142(6)(a) mandates cash refund of admissible credit in transitional proceedings. The Court reasons that this provision removes any lingering contention that the legitimately availed CENVAT credit could not be applied to discharge duties or refunded - supporting the conclusion that the unit need not pay duty in cash where admissible credit exists. Ratio vs. Obiter: Ratio - transitional GST provision affirms the right to cash refund of admissible CENVAT credit and supports utilisation/refund in favour of the claimant; Obiter - broader policy observations about the continuity of credit regimes post-GST. Conclusions: Section 142(6)(a) reinforces the entitlement to conversion/refund of admissible CENVAT credit, further supporting the availability of credit for discharging de-bonding liabilities. Issue 5 - Limitation/extended period objection Legal framework: Statutory limitation for issuance of show-cause notices and extended period provisions were raised by the unit as affecting the validity of the show-cause. Precedent treatment and reasoning: The limitation argument was raised by the respondent in factual pleadings, but the Court's ultimate disposition rested on the legal question of entitlement to utilize CENVAT credit (following precedent). The judgment records the limitation contention but does not make it the basis of the final decision; the primary ground for disposal is conformity with the earlier Dishman decision and related authorities. Ratio vs. Obiter: Obiter - the limitation point was not treated as dispositive and thus remains unadjudicated as a core ruling in this judgment. Conclusions: The limitation plea was noted but not determinative; the Court disposed of the matter on the ground that the unit is entitled to utilize legitimately availed CENVAT credit at de-bonding in accordance with precedent and transitional provisions. Final Disposition The Court, applying and following the earlier decision on the identical legal question and related precedents, answered the substantial question in favour of the unit: legitimately availed CENVAT credit can be utilised to discharge the duty exigible at the time of de-bonding of a 100% EOU; administrative directions requiring payment in cash are quashed to the extent inconsistent with that principle, and the appeal stands dismissed accordingly.