M/s Sanwariya Tiles Pvt. Ltd., M/s Rajaram Marbles & Granites Pvt. Ltd. Versus CEC&CGST, Jodhpur
Central Excise
2018 (6) TMI 783 – CESTAT NEW DELHI – 2019 (365) E.L.T. 136 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 1-6-2018
Ex. Appeal Nos.50849 & 50868 of 2018-SM – A/52101-52102/2018-SM[BR]
Central Excise
Ms. Archana Wadhwa, Member (Judicial)
Ms. Asmita Nayak, Advocate for the appellant
Sh. H. C. Saini, AR for the Respondent
Per: Archana Wadhwa:
Both the appeals are being disposed of by a common order as the issue involved in both of them is identical
2. As per facts on record, the appellants are engaged in the manufacture of marble slabs out of the imported marble slabs. During the period prior to February, 2015, they were availing the benefit of small scale exemption Notification. The exemption limit of value of clearances was crossed by them in February, 2015 and as such in terms of provisions of rule 3(2) of Cenvat Credit Rules, 2004, they became entit
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order of the original adjudicating authority was upheld by Commissioner (Appeals).
Hence, the present appeals.
4. The appellate authority, while rejecting the assessee's appeal observed as under:-
“6. The basic defence of appellant is that both sub rules cannot be applied simultaneously and they are entitled for availment of credit in view of rule 3(2) of the Cenvat Credit Rules, 2004. However, I observe that from the wording of above two rules, there is nothing to suggest that both these rules cannot be applied simultaneously. I observe that while Rule 3(2) prescribes the eligibility to avail cenvat credit as soon as the unit crosses threshold limit, Rule 4(1) prescribes particular condition for availment of that credit. If, a condition under Rule 4 specifically disallows cenvat credit on a particular goods or service, the cenvat credit cannot be allowed under Rule 3 of the Cenvat Credit Rules, 2004.
7. I find that the case laws quoted by the appellant are not relevant in the pre
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ly, the appellants were not in a position to avail the credit immediately on receipt of the goods or within a period of six months from the issuance of bills of entry, as long as they were working under the small scale exemption notification. Their right to avail the credit would arise only on crossing the exemption limit. Such right specifically stands extended to them by the provisions of Rule 3(2) of the Cenvat Credit Rules and cannot be extinguished by making reference to Rule 4(1). Rule 4(1) which provide for availment of credit within a period of six months from the relevant document applies whether an assessee is already working under the cenvat credit scheme and is availing the cenvat on regular basis. A harmonious interpretation of both the rules leads to the above conclusion. By referring to one provision of law, the other provision cannot be made otiose, as per the settled principle of interpretation. It is not the appellant's fault that they crossed the exemption limit afte
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