2026 (8) TMI 235

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....ed order) passed by the Commissioner of Commissioner of Central Tax, Guntur, whereby, the Central Excise duty amounting to Rs. 1,38,83,670/- has been confirmed under proviso to Section 11A(4) of the Central Excise Act, 1944 along with applicable interest under section 11AA and equal penalty. 2. The fact in brief is, that the appellant is engaged in the manufacture and clearance of fertilizers, namely NPK Mixtures, classifiable under CETH No. 3105 2000 of the Central Excise Tariff Act, 1985. 3. During the relevant period, i.e., January 2016 to June 2017, the appellant cleared the goods by availing concessional duty of 1% ad valorem under Notification No. 12/2012-CE dated 17.03.2012, Serial No. 128, subject to condition no. 25. Conditio....

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....closing stock during migration to GST Regime and therefore cannot be treated as violation of notification conditions. 10. It is argued that even assuming credit was wrongly taken, the same stood reverse/lapse during transitional to GST and therefore the benefit of concessional notification cannot be denied. Reliance has been placed on the following case laws: (i) CCE Vs M/s Ashima Dyecot Ltd., [2008 (12) STR 701 (Guj)] (ii) M/s Orient Texfabs Pvt Ltd., Vs CCE, Delhi-III [2015 (327) ELT 605 (Tri-Del)] (iii) M/s Scott Wilson Kirkpatric (I) Pvt Ltd., Vs CST, Bangalore [2007 (5) STR 118 (Tri-Bang)] to contend that reversal of credit amounts to non-availment and extended period is not invokable when facts were di....

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.... ER-1 returns for June 2017. The appellant does not dispute entry of such credit but are used that it was either unrelated or unutilized. Once credit is entered and availed under statutory records, it constitutes availment of Cenvat Credit. Mere non-utilization does not erase the fact of availments. 17. The appellant repeatedly emphasizes that the credit was never utilized. The contention does not assist the appellant. The notification condition does not say "credit should not be utilized". It says credit should not be taken. There is a marked distinction between taking credit and utilizing credit. Law recognizes both as separate events. Therefore, even if credit remained unutilized, the condition of exemption stands breach once credit i....