2018 (9) TMI 19 – CESTAT MUMBAI – TMI – CENVAT Credit – adjustment of credit prior to 01.09.2014 – taking credit after 6 months from the date of invoice – insertion of 6th proviso in the Rule 4 of Cenvat Credit Rules 2004 – assessee sought breathing period since there was limitation prior to insertion of such proviso – Held that:- The insertion of the proviso is limited to its application and no explanation even by way of clarificatory orders by the department is found in respect of application of the Rule to the invoices raised prior to the amendment date or about adjustment of such credit in so called breathing period of nearly one month and three weeks during which period, situation might not have arisen to avail such credit since production is influenced by lot of factors including rainy season, labour problem etc. – The clarificatory order issued by the CBEC Board vide Circular no. 990/14/2014-CX-8 dated 19.11.2014 which has been referred in the show-cause notice is unrelated to
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dicating authority has been upheld by the Commissioner (Appeals-I), Central Tax, Pune. 2. Factual backdrop of the case is that appellant company was availing cenvat credit of capital goods and input services as well as using those towards central excise duty on finished excisable goods. There was no restriction for such adjustment of credit prior to 01.09.2014. By insertion of 6th proviso in the Rule 4 of Cenvat Credit Rules 2004 w.e.f. 01.09.2014 taking of cenvat credit after 6 months of date of issue of any documents specified in sub- Rule (1) of Rule 9 was disallowed. Appellant on the end of that month i.e. on 30.09.2014 took credit of the above referred amount against the bills raised between 2010 and August 2013. On scrutiny of ER returns for the month of September 2014, the assessing officer pointed out the irregularity and issued show-cause accordingly. Reply of the appellant was found not satisfactory and accordingly, duty demand along with interest and penalty of 10% was raise
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submits that in view of settled principle of law after pronouncement of Hon'ble High Court of Madhya Pradesh in Bharat Heavy Electrical Ltd. [2016 (332) ELT 411 (MP)] and Bhushan Steel & Strip Ltd. 1999 (114) ELT 964 (T) credit cannot be denied on goods received against duty paying document before issue of such Notification for which lenient consideration should be given to the cause of the appellant while disposing of the appeal. 4. In response to the appellant contention, ld. AR for the department Shri Sanjay Hasija submitted that the amended proviso was brought into Rule on 11.07.2014 and the effective date for application of this proviso stipulating 6 months period was 01.09.2014. A breathing period of one month and two weeks was given in respect of adjustment of utilisation of previous documents like invoice for availment of cenvat credit which the appellant did not prefer use and therefore, no further benefit can be extended to him that would be violative of statutory res
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eriod of limitation in three contingencies if within six months credit was taken for the first time and subsequently reversed. Under such situation, it would be irrational to deny credit would be given to the documents against which credit might have been availed, had the insertion of proviso stipulating six months to avail such credit been not brought into force. Therefore, in conformity to the judicial precedent set by this Tribunal in 2018 decision referred supra, the only inference that can be drawn is that such Notification is applicable to the invoices/ documents raised after 11.07.2014. The other presumption could be that date of invocation should be considered as deemed date of invoice in respect of all previous documents/ invoices available with the manufacturing and supplying agency to avail such cenvat credit, that too in the earliest possible opportunity, within six months restriction to be counted from 11.07.2014. in the case in hand, since appellant had availed the credit
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