TaxTMI 
TaxTMI 
2025 (8) TMI 863
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....services without payment of tax, the Cenvat credit was accumulated which was claimed as refund in terms of Rule 5 of the Cenvat Credit Rules, 2004 CCR, 2004. The present dispute pertains to the period October 2006. For the same period the Appellant had claimed refund under Rule 5 of the Credit Rules which was duly sanctioned to them vide Order dated 23.05.2018. During the course of audit of the Appellant's records, it was allegedly observed that in the month of October 2016, the Appellant had availed Cenvat credit on certain invoices after a lapse of 1 year from the date of invoices issued by the service provider in violation of Rule 7 of the Credit Rules. Pursuant to the above observation, Show Cause Notice No. CGST-I/DIV-V/VIMAN NAGAR (NEW)/R-1/06/AC/AUDIT-I/2019-20 dated 04.06.2009 was issued to the Appellant inter-alia calling upon it to show cause as to why amount of Cenvat credit of Rs.14,21,791/- availed during October 2016, as detailed in table at paragraph 7 of the show cause notice SCN should not be demanded and recovered under the provisions of Rule 14 of the Credit Rules read with proviso to Section 73(1) of the Finance Act, 1994. In paragraph 3 of the SCN, the sole gro....
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....ice tax. Being aggrieved by the above Order, the Appellant preferred an appeal before the Learned Commissioner (Appeals). Vide the impugned Order-in- Appeal dated 30.11.2021, the Learned Commissioner (Appeals) accepted the submission of the Appellant that the time limit for claiming of the Cenvat credit in respect of the invoices dated 01.10.2015 expired on 01.10.2016. Hence, the case of the Department as per the show cause notice stands decided in favour of the Appellant. However, in spite of holding the above, the Commissioner (Appeals) proceeded to reject the appeal filed by the Appellant on the ground that the Appellant has not produced any proof that the Cenvat credit was taken on 01.10.2016. Further, in paragraph 11 of the impugned Order, the Learned Commissioner (Appeals) has observed that extended period of limitation was rightly invoked. Hence, the present appeal. 3. Learned Senior Advocate appearing on behalf of the Appellant submitted that the availment/ eligibility of Cenvat credit was not in dispute and the entire case of the department was with regard to whether the credit on invoices dated 01.10.2015 should have been availed by 30.09.2016 or in the month of Octobe....
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....th of October, 2016. However, during the course of audit, the Department took a view that the one year from the date of issue had lapsed on 30.09.2016. Hence, the credit availed by the Appellant in the month of October, 2016 is not correct. I find that as per the fifth proviso to Rule 4(7) of CCR as amended, the Cenvat credit shall not be availed after one year from the date of issue of invoice. The relevant provision is reproduced as hereunder:- "RULE 4. Conditions for allowing CENVAT credit. - (7) The CENVAT Credit in respect of input service shall be allowed, on or after the day on which the invoice, bill or, challan referred in Rule 9 is received: ...... ...... ...... Provided also that the manufacturer or the provider of output service shall not take CENVAT credit after one year of the date of issue of any of the documents specified in sub-rule (1) of rule 9 except in case of services provided by Government, local authority or any other person, by way of assignment of right to any natural resource." 8. On perusal of the above Rule, it is clear that the Cenvat credit could not be availed after lapse of one year from the d....
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....yearly return. The said Rule read as under:- "(9) The provider of output service availing CENVAT credit, shall submit a half yearly return in form specified, by notification, by the Board to the Superintendent of Central Excise, by the end of the month following the particular quarter or half year." 10. I further find that the Appellant has filed the returns in the requisite format and there is no dispute on this account. Hence, it is clear that there is no violation of any of the provisions of Sub-rule 6 or Sub-rule 9 of the Rule 9 of the CCR. None of the provisions mandate to maintain records with respect to the date of availment of Cenvat credit. Hence, the Appellant has not maintained the same. However, this cannot be the ground to deny the contentions of the Appellant that the Cenvat credit in the present case was availed on 01.10.2016. I find that the Appellant was having option to avail Cenvat credit in the month of September, 2016 (after making appropriate amendments in its records) even after working for the month of October, 2016. However, the Appellant was and is of the view that it acted in accordance with law. Hence, it is clear that the Appellant has not a....