2023 (1) TMI 450

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....ed is, if the appellant have right to choose an option to reverse the amount under Rule 6(3) of Cenvat Credit Rules when they have not specifically exercised any such option before such transaction. The third issue is if second proviso to Section 11AC (1) of Central Excise Act, 1944 can be invoked for the disputed period April 2016 to June 2017. 2. Learned Counsel pointed out that they have availed certain services namely, terminal handing charges, pre-shipment inspection for export of goods after the Let export order. He argued that the credit of said services has been denied relying on the CBEC Circular No. 999/6/2015-CX dated 28.02.2015 which reads as under:- "4. In most of the cases, therefore, it would appear that handing o....

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..... He pointed out that there are many decisions of Tribunal and also CBEC Circulars to the effect that Port of Export is the place of removal for the purpose of export. In these circumstances, Cenvat credit of services received after the Let export order, cannot be denied. 3. The second issue involved is in respect of amount of Cenvat credit required to be reversed for trading activity done by the exporter. A demand under Rule 6(3)(i) has been against the appellant. The appellant however, opted to reverse the credit under Rule 6(3)(ii) read with Rule 6(3AA). The said option has been denied by the first Appellate Authority on the ground that it is discretion of the Adjudicating Authority whether to allow or disallow after the transaction i....

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....redit shall be determined accordingly." It is seen from the above that Circular presumes that after the Let export order there is no activity undertaken by the exporter and therefore no credit is available. On this ground Cenvat credit on pre-shipment charges has been denied. In the instant case the appellants continued possession even after Let Export order as is apparent from the fact that they managed Inspection and handling of goods. In view of above, the Circular is not applicable. The appeal on this count is allowed. 6. The second issue involved is whether the Adjudicating Authority has discretion to choose which method of compliance with the requirement of Rule 6 of Cenvat Credit Rules, 2004 is to be followed by the assessee or....