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Voith Turbo Private Limited V/S CCT, Secunderabad GST


Company & Directors' Information:- VOITH TURBO PRIVATE LIMITED [Active] CIN = U29219TG1985PTC011246

Company & Directors' Information:- VOITH INDIA PRIVATE LTD. [Strike Off] CIN = U74900DL1985PTC021440

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

Company & Directors' Information:- TURBO (INDIA) PVT LTD [Strike Off] CIN = U29309TN1988PTC015810

    Appeal No. E/31289/2017 (Arising out of Order-in-Appeal No. HYD-EXCUS-SC-AP2-0033-17-18-CE, dated 29.08.2017 passed by Commissioner(Appeals-II) CE, Hyderabad) and Final Order No. A/30567/2018

    Decided On, 17 May 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, THE HONORABLE JUSTICE: P.V. SUBBA RAO
    By, MEMBER

    For Petitioner: V.S. Sridhar and P. Venkata Prasad, CAs. And For Respondents: B. Guna Ranjan, Superintendent/AR



Judgment Text


1. Appellant assessee are manufacturers of hydraulic/fluid couplings and they availed credit of duty paid on inputs/tax paid on input services under CENVAT Credit Rules (CCR), 2004. Their final goods are cleared both on payment of duty and without payment of duty to M/s. NTPC Limited under an exemption notification. During audit by Central Excise authorities, it was found that the appellant had not reversed the CENVAT credit under Rule 6(3) on the exempted goods. It was pointed out and the appellant reversed an amount of Rs. 24,18,000/- which is 6% of the value of exempted goods and also paid interest applicable thereon. Thereafter, a show cause notice dated 29.09.2015 was issued to the appellants seeking to appropriate the aforesaid amount and also seeking to impose penalty under rule 15(2) of CCR, 2004 read with Section 11A(4) of Central Excise Act, 1944 and under Section 11AC ibid. After following due process of law, the Ld. Lower authorities ordered recovery of CENVAT credit and interest and appropriated the amounts already paid in this regard. He also imposed a penalty of Rs. 24,18,000/- under Rule 15(2) read with Section 11AC of Central Excise Act, 1944.

2. Aggrieved, the appellant filed an appeal before Commissioner (Appeals) who upheld confirmation of demand, both on merits and on limitation and reduced penalty to Rs. 12,09,000/-. Not satisfied with the order of Commissioner (Appeals), the appellant preferred this appeal on the following grounds:

i) Although they believe that reversal of CENVAT credit under Rule 6(3) is not required in view of Rule 6(6)(vii), they have already reversed the same and also paid interest well before the show cause notice dated 29.09.2015 was issued. As per Section 11A(2) as they have reversed the credit and paid the interest, no show cause notice should have been issued against them. Hence, the SCN is not valid.

ii) Rule 6(6) of CENVAT Credit Rules, 2004 reads as follows:

"(6) The provisions of sub rules (1), (2), (3), and (4) shall not be applicable in case the excisable goods removed without payment of duty are either-

(i) ...................; or

(i) ..................; or

(ii) ..................; or

(iv) .................; or

(v) ..................; or

(vi) ..................; or

(vii) ..................; or

(viii) All goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under sub-section (1) of Section 3 of the said Customs Tariff Act when imported into India and are supplied,-

(a) Against International Competitive Bidding; or

(b) To a power project from which power supply has been tied up through tariff based competitive bidding; or

(c) To a power project awarded to a developer through tariff based competitive bidding,

In terms of Notification No. 12/2012-Central Excise, dated the 17th March, 2012;

(ix) .......................;

(iii) The entire demand arose on the allegation that the exemption under rule 6(6)(vii) is not applicable to the instant case as the impugned clearances were subject to 2.5% BCD in terms of Sl. No. 508 of Notification No. 12/2012-CU, dated 17.03.2012 as amended and therefore the same cannot be considered as exempted goods. Rule 6(6)(vii) does not specify whether the exemption has to be full or partial, and if it is intended to only goods fully exempted, the notification would have said so.

3. The words "goods exempted from tax" is not defined in CENVAT Credit Rules 2004 and hence the definition of Customs Act should be relied upon. Hon'ble Supreme Court in the case of Jacsons Thevara vs. CCCE : 1992 (61) ELT 343 (S.C.)] held that exemption shall be read to include partial exemption.

4. The extended period of limitation is not invokable as the appellant have not willfully contravened any Rule with intent to avoid payment of duty and had, in fact, provided all relevant information in their returns for the relevant period. Hence, willful suppression of facts and violation of any Act or Rules with the intent to avoid payment of duty cannot be invoked.

5. The appellants are under bona fide belief that they are eligible to the impugned credit in terms of Rule 6(6)(vii) and hence extended period of limitation cannot be invoked. Interest and penalty are not payable or imposable as CENVAT Credit itself is not liable to be reversed.

6. During the hearing, Ld. Consultant appeared on behalf of the appellant and strongly reiterated the above arguments.

7. Ld. DR, on the other hand, vehemently contested this position and argued that appellant is not entitled to CENVAT credit since he was not covered by the exemption under rule 6(6)(vii) inasmuch as similar goods if imported to India are chargeable a duty of 2.5%, they were not exempted. He also argued that in the self declaration and self assessment, the entire responsibility of ensuring that the credit is properly taken shall rest on the assessee as laid down in Rule 9(5) of CENVAT credit Rules 2004. The appellant has not done so. The fact that they have taken inadmissible credit and have not reversed as per rule 6(3) would not have come to light but for the audit. They suppressed the fact and therefore reversal of credit, interest and penalty invoking the extended period of demand and therefore his appeal may be dismissed.

8. I find that the following issues need to be decided.

(i) What is the meaning of expression "which are exempt from the duties of customs" under rule 6(6)(vii) of CENVAT Credit Rules, 2004 - does it include only goods which are fully exempted or it also includes the goods which are partially exempted from the customs duty? Consequently, is the appellant required to reverse the credit as per Rule 6(3) of CENVAT credit Rules?

(ii) Has appellant resorted to fraud, willful misstatement, suppression of facts or violated any provisions of the Act of the Rules with an intention to avoid payment of duty resulting in extended period of limitation?

(iii) Is the appellant liable to pay interest and penalty?

9. I proceed to decide these issues. The words "goods which are exempted" are not defined in CENVAT Credit Rules 2004. However, the words "exempted goods" and "exempted services" are defined in the Rules. Both these expressions would mean that they are exempted on the whole of the duty or tax or chargeable to nil rate of duty. The expression "exempted goods" is used at several places in CENVAT Credit Rules, 2004 and in Rule 5(a) the words " products which are exempted" is used and in Rule 6(6)(viii) the expression "goods which are exempted" is used. I could not find any legal precedent in which this expression under rule 6(6)(vii) has been interpreted. It has been held by Hon'ble Supreme Court in the case of Oswal Agro Mills Ltd : 1993 (66) ELT 37 (S.C.)] that "the task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathematical formula. It is an attempt to discover the intention of legislature from the language used by them, keeping always in mind that the language used is at best and imperfect instrument for the expression of actual human thoughts. It is also idle to expect that the draftsman drafted it with divine prescience and perfect and unequivocal clarity. Therefore, Court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result". I, therefore, find it is prudent to interpret the words "goods which are exempted" in the context of the scheme of CENVAT credit. The CENVAT Credit scheme has been designed to set off the duty paid on the inputs against the duty to be paid on the final products or services. Wherever no duty is payable on the final products, either because they are exempted or are chargeable nil rate of duty, no CENVAT credit is admissible. This principle has been well established and the rates of duty on the inputs and final products are immaterial. Even if the rate of duty of final products is merely 1% the credit of duty paid on inputs is available. However, if the final products are exempted or chargeable to nil rate of duty, no credit is admissible. This has been made clear in Rule 6(1) of CENVAT credit Rules 2004. Provisions have been made under sub rules 2, 3 & 4 of Rule 6, to ensure that where some inputs are used for exempted goods while others are used for goods on which duty has been paid, credit is available only to the extent the imports are used in dutiable goods. The harmonious interpretation of the expression "goods which are exempted from duties" with the remaining part of the scheme of CENVAT credit rules would require one to interpret as the goods which are fully exempted from duty. Hence, even 2.5% duty of customs will not make the goods "which are exempted from duty'. I am unable to agree with the appellant that even a partial exemption should be treated as an exemption as it is completely against the scheme of CENVAT Credit Rules, 2004. The case of Jacsons Thevara vs. CCCE relied upon by the appellant was in a different factual matrix. The Hon'ble Apex Court was examining whether the goods which are partially exempted also can be covered under Section 111 of the Customs Act. This section provides for confiscation of improperly imported goods including the goods which are exempted subject to any condition from duty or permission which has been followed by the importer. The Hon'ble Supreme Court did not deal with the availability of CENVAT credit.

10. I, therefore, find that the appellant is not exempted from reversing the credit as per Rule 6(3) of CENVAT Credit Rules. The second question is whether the assessee has resorted to fraud, willful misstatement, suppression of facts or violation of any condition of the Act or Rules, with an intent to avoid payment of duty. I find from the records presented during hearing that the assessee in fact had filed returns in ER-I in which under the head "duty payable for clearance", they have declared

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that they have availed the benefit of notification No. 12/2012. Under the head details of CENVAT credit taken and utilised, they have shown the credit utilised for payment of amount in terms of Rule 6 of CENVAT credit Rules as zero. Thus, it is evident that the assessee had declared both the fact that they have availed the exemption notification and also that they have not reversed any CENVAT credit, in their ER-I returns filed with the department. I do not find that they have suppressed any facts or misstatement or violated any act of Rules with an intent to evade payment of duty. It appears that the Officer who scrutinised the returns, has not pointed out that they have not reversed the credit and only audit discovered and pointed it out. I, therefore, find that the extended period limitation is not invokable in this case. Consequently, the penalty under rule 15(2) of CENVAT Credit Rules 2004 read with Section 11AC does not survive. The amount of interest under rule 14 of CENVAT Credit Rules 11AA also gets reduced correspondingly. 11. The appeal is partly allowed modifying the Order-in-Appeal as stated hereinabove.
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