M/s. Pepsico India Holdings Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai Outer
Central Excise
2018 (10) TMI 696 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 11-10-2018
E/41589/2018 – 42584/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
For the Appellant : Ms. Krithika Jaganathan , Advocate
For the Respondent : Shri R. Subramaniam, AC (AR)
ORDER
Brief facts are that the appellants who are engaged in manufacture of aerated water without containing sugar, aerated water and sweetening beverage etc. were also availing the facility of CENVAT credit of duty paid on inputs, capital goods and service tax paid on input service. During the course of audit and scrutiny of the credit availed, it was noticed that the appellants had availed CENVAT credit of Rs. 11,48,094/- vide sl. No. 52 in the CENVAT account register for the month of July 2014 without any supporting documents as prescribed under CENVAT Credit Rules, 2004. The appellants
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inadvertently mentioned higher amount of Rs. 11,84,033/- as CENVAT credit utilizing for paying excise duty and disclosing in their ER-1 returns, though they had adjusted only lesser amount for payment of duty. She explained the calculation / error as given in the Table below:
S. No.
Particulars
Amount (July 2012)
Amount (November 2012)
1.
Excise duty liability (A)
1,62,96,444
1,42,32,775
2.
Amount paid through cash (B)
95,50,000
45,00,000
3.
Amount paid through CENVAT credit (C)
73,99,642
1,02,63,610
4.
Excess CENVAT credit shown as adjusted inadvertently (D) = (A) – (B) – (C)
6,53,198/-
5,30,835/-
Total credit shown as utilized
11,84,033/-
2.1 That only during internal verification done in July 2014, the mistake came to light and the appellant then took recredit of the excess CENVAT credit shown to have been utilized by the appellant incorrectly. The amounts were not actually utilized against payment of excise duty and the entry of adjustment / debit wa
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o moto credit by the assessee. She also relied upon the decision of the jurisdictional High Court in the case of ICMC Corporation Ltd. Vs. Commissioner of Central Excise – 2014 (302) ELT 45 (Mad.) and argued that suo moto credit involves only an account entry reversal and there being no outflow of funds, it is not required to file refund claim.
3. The ld. AR Shri R.Subramaniam supported the findings in the impugned order. He submitted that when the appellants have availed the credit by suo moto recredit, the same is ineligible because, credit is not availed on any supporting documents as prescribed under Rule 9 of the CENVAT Credit Rules, 2004. Further, if any excess duty has been paid, the only remedy available is to file refund claim. The appellant instead of filing refund claim has taken suo moto credit to circumvent the limitation prescribed under Section 11B of the Central Excise Act. He emphasized that there is no procedure for taking suo moto credit under the Act.
4. Heard bot
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y the assessee later. Further, the jurisdictional High court in the case of ICMC Corporation Ltd. (supra) had occasion to analyse the very same and has held as under:-
“13. We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat credit on Service Tax for discharging its liability.
However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004.
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