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M/s. Suryadev Alloys & Power Pvt. Ltd. v/s Commissioner of GST & Central Excise Chennai Outer


Company & Directors' Information:- SURYADEV ALLOYS AND POWER PRIVATE LIMITED [Active] CIN = U29141TN2006PTC059997

Company & Directors' Information:- S A ALLOYS PRIVATE LIMITED [Active] CIN = U27310DL1996PTC081185

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- S U ALLOYS PVT LTD [Strike Off] CIN = U27104WB1988PTC044767

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- G C ALLOYS PVT LTD [Strike Off] CIN = U27101PB1995PTC015760

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

    Appeal No. E/42032 of 2018 in-Appeal No. 221 of 2018 & Final Order No. 42881 of 2018

    Decided On, 14 November 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONOURABLE MS. C.S. SULEKHA BEEVI
    By, JUDICIAL MEMBER

    For the Appellant: S. Sridevi, Advocate. For the Respondent: L. Nandakumar, AC (AR).



Judgment Text

1. Brief facts are that the appellants are engaged in manufacture of MS bars, MS billets etc. and are availing the facility of CENVAT credit on inputs, capital goods and input services. During the course of audit, it was noticed that for the period September 2014 to September 2015, the appellant had wrongly availed credit to the tune of Rs.21,35,493/- beyond the time limit of six months / one year in contravention of Rule 4(1) of CENVAT Credit Rules, 2004. Show cause notice dated 2.5.2017 was issued proposing to recover the wrongly availed credit and to impose penalty. After due process of law, the original authority confirmed the demand and imposed penalty. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal.

2. On behalf of the appellant, ld. counsel Ms. S. Sridevi submitted that the law relating to availment of credit as provided in Rule 4(1) of CCR, 2004 was amended vide Notification No.21/2014-CE(NT) dated 11.7.2014. For the first time, the time limit was prescribed for availing credit under the notification provided for CENVAT credit and cannot be availed after six months from the date of issue of invoices. The said time limit was thereafter extended to one year vide Notification No.6/2015-CE(NT) dated 1.3.2015. As per the said amended provision, the appellant can avail credit on invoices within a period of one year from the date of the first notification, when the notification has come into force with effect from 1.9.2014. In the present case, all the invoices are dated prior to 1.9.2014. She adverted to pages 49 to 51 of the appeal paper book and submitted that all the invoices are dated 14.6.2012 to 9.1.2014. and are issued prior to 1.9.2014. The time limit for availing credit was prescribed or has come into effect only with effect from 1.9.2014. Thus the invoices on which credit has been later availed by the appellant having been issued prior to 1.9.2014, the credit availed by the appellant is correct and proper. She clarified that the credit though availed by the appellant is after 1.9.2014, since the invoices are prior to 1.9.2014, the time limit provided in amended provision does not apply. She relied upon the decision of the Tribunal in the case of Voss Exotech Automotive Pvt. Ltd. Vs. Commissioner of Central Excise, Pune – 2018 (3) TMI 1048-CESTAT Mumbai; M/s. Hariprabha Chemicals Pvt. Ltd. Vs. Commissioner of Central Excise, Kolhapur – 2018 (9) TMI 19 – CESTAT Mumbai and M/s. Indian Potash Ltd. Vs. Commissioner of Central Excise, Meerut – 2018 (10) TMI 1367- CESTAT Ahmedabad.

3. The ld. AR Shri L. Nandakumar supported the findings in the impugned order. He argued that since credit has been availed after 1.9.2014, the amended provision could be applicable and therefore the credit has been rightly disallowed.

4. Heard both sides.

5. The issue is whether the appellant is eligible to avail credit on the invoices issued prior to 11.7.2014 / 1.9.2014 from which date time has been prescribed by Notification Nos.21/2014 and 6/2015. The said notification provided that the assessee has to avail credit on the invoices within a period of six months /one year from the date of issue of the invoices / documents. In the present case, it is seen that all the invoices are issued even prior to 11.7.2014. The department has issued the show cause notice on the wrong interpretation of the provisions that credit has been availed by the appellant after 11.7.2014. The amended provision has no retrospective effect. The issue has been analyzed in the case of M/s. Voss Exotech Automotive Pvt. Ltd. (supra), wherein the Tribunal has discussed as under:-

'4. On careful consideration of the submisisons made by both the sides, I find that for denial of the credit, the Notification No.21/14-CE(NT) dated 11.7.2014 was invoked wherein six months period is available for taking credit. As per the facts of the case, credit was taken in respect of the invoices issued in the month of March and April 2014 in November 2014. On going through the notification No.6/2015-CE(NT) dated 1.3.2015, the period available for taking credit is 1 year in terms of the notification, the invoices issued in the month of March and April 2014 become eligible for cenvat credit. I also observed that the notification No.21/14-ST(NT) dated 11.7.2014 should be applicable to those cases wherein the invoices were issued on or after 11.7.2014 for the reason that notification was not applicable to the invoices issued prior to the date of notification therefore at the time of issuance of the invoices no time limit was prescribed. Therefore, in respect of those invoices the limitation of six months cannot be made applicable. Moreover, for taking credit there is no statutory records prescribed the assessee’s records were considered as account for cenvat credit. Even though the credit was not entered in so called RG23A Part Ii but it is recorded in

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the books of accounts, it will be considered as cenvat credit was recorded. On this ground also, it can be said that there is no delay in taking the credit. As per my above discussion, the appellant is entitled for the cenvat credit hence the impugned order is set aside. The appeal is allowed.' 6. Appreciating the facts and applying the position of law as well as the decision discussed above, I am of the view that the demand cannot sustain. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
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