TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1458
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....o, there is no allegation that the impugned credit had been ineligibly taken under rule 3 of CENVAT Credit Rules, 2004 or inappropriately retained in breach of rule 6 of CENVAT Credit Rules, 2004 and nor that the impugned credit had been utilized for the payment of duty at any time under rule 3(4) of CENVAT Credit Rules, 2004 with consequence of confinement to accounting limbo - the only circumstances warranting proceedings for extinguishment with resuscitation only through jurisdictional sanction. It is all about the proposition of service tax authorities that existence of credit is contingent upon reporting; that, but for retention in returns, credit lapses. 2. The proceedings boiled down to credit of Rs. 6,70,71,862, unprotestingly acknowledged as validly taken and unquestioned as properly retained as on 30th September 2008, that had not been carried forward as balance in the biannual returns until Rs. 3,93,21,581 surfaced as available credit in the returns for April to September 2013. It is solely on the failure of the appellant to carry forward this amount for a period of over 4½ years that the said amount was sought to be erased by the impugned order, besides be....
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....amount, i.e., Rs. 6,70,71,862, off the records and, thereby, under the radar of returns. Though circular [circular no. 137/72/2008-Cx-4 dated November 21, 2009 ] clarifying entitlement to carry forward such credit was issued by the Central Board of Excise and Customs (CBEC), the appellant did not venture to do so in subsequent returns either and it was only after an audit objection in which discrepancies, to the tune of Rs. 2,77,50,281, was pointed out during the audit of 2012-13 that the unreported credit was restored and partially debited for dues arising therefrom. The dispute revolves around the said amount so restored. 5. According to Learned Counsel for the appellant, there is neither bar on retention of the credit, as clarified in circular supra, nor any detriment fastenable on them for restoring that which was rightly theirs all along. It was contended that there is no provision in Finance Act, 1994, or in CENVAT Credit Rules, 2004, to confirm such demand either under section 73 of Finance Act, 1994 or to recover interest under section 75 of Finance Act, 1994. Reliance was placed on the decision of the Tribunal in Bharat Petroleum Corporation Ltd v. Commissione....
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....ax. 8. Though straddled by the two levies on goods and on services, CENVAT credit scheme has not been incorporated in either of, or both, the statutes. The legal patina of the scheme draws upon the rule making powers of the Central Government in both for tweaking 'payment of duty in the manner prescribed' as found in both Central Excise Rules, 2002 and Service Tax Rules, 1994. There was, thereby, an element of flexibility including the maintenance of internal records for keeping track of available credit in so far as the manufacturers and providers of service are concerned and stipulations only for the documents evidencing eligibility to take credit on each occasion. To some extent, and probably for the purpose of uniformity, provision has been made in the periodic returns prescribed in Central Excise Rules, 2002 and Service Tax Rules, 1994 for reporting and carrying forward of credit accumulated; in practice, these returns are consigned to the archives for retrieval only in the event of investigation. However, from the very nature of the purpose of CENVAT credit and its existence, the essential element to be considered for estopping the utilization, i.e., by recovery under rule ....
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....ration should have been within a reasonable period. We find no provision in law nor in any decision of the Tribunal or of the constitutional courts which has set out reasonable period as the criteria in identical or similar circumstances. On perusal of the decision of the Larger Bench of the Tribunal, as we find that the sole issue was limited to the precedent offered by decisions in Commissioner of Central Excise, Belgaum v. Comfit Sanitary Napkins (I) Pvt Ltd [2004 (174) ELT 220 (Tri - Bang)] and in Motorola India Pvt Ltd v. Commissioner of Central Excise, Bangalore-III [2006 (193) ELT 468 (Tri - Bang)] for adjudging dispute on duty liability discharged both at the time of clearance and cumulatively at the end of the month - an entirely different issue. M/s BDH Industries Ltd, the appellant therein took credit of the excess amount so paid and, in that context, reference was made to the Larger Bench of the Tribunal on the common understanding that the Central Government was not entitled to retain the said credit but restitution was, nevertheless, constrained within the scheme of law. In the peculiar facts of that case in which the amount debited once was re-credited without e....
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....utiable goods. There was involvement of exempted activities also. In this regard, the appellant have been making various correspondence with the department and department was aware of the entire process. Therefore, it cannot be said that the appellant have not made claim for the Cenvat credit. It is further observed that as per the submissions of the Learned Counsel, the appellant have made the entries of all receipts of their inputs in the private records and in books of account. If that be so, the credit cannot be denied only on the ground that the credit was not taken in the particular Cenvat account, which is not the prescribed record. As per the provisions of Cenvat Credit Rules, the requirement for allowing the credit is the inputs/input services should be received in the factory of the manufacturer and the same should be used in or in relation to the manufacture of final product. It is obvious that when input is received, the same is entered in the records. Therefore, it cannot be said that the appellant have availed the credit belatedly or there is no claim of the Cenvat Credit by the appellant. It is observed that the adjudicating authority decided the entire case onl....