Please go ahead of claiming now as there is no provision which is restricting an asseessee from claiming the cenvat benefit the only this that during that period you should have been paid the duty to exchequer.
Please refter caselaws
2011 (273) E.L.T. 535 (Tri. - Ahmd.)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. II]
Shri B.S.V. Murthy, Member (T)
COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD
Versus
PIERLITA INDIA PVT. LTD.
Final Order No. A/1364/2011-WZB/AHD, dated 28-7-2011 in Appeal No. E/766/2010
Cenvat - Delayed availment - No provision for denying credit as no time limit prescribed in Cenvat Credit Rules for availment of credit - No basis for Revenue’s stand that credit need to be availed within a reasonable period - Even supplementary instructions issued by Board not prescribed any time- limit - Rule 4 of Cenvat Credit Rules, 2004. [C.B.E. & C. Instruction F.No. 345/2/2000-TRU, dated 29-9-2000; 2000 (118)E.L.T. 311 (S.C.) relied on]. [para 4]
Appeal rejected
CASES CITED
Collector v. Raghuvar (India) Ltd. — 2000 (118) E.L.T. 311 (S.C.) — Relied on............. [Paras 2, 4]
Commissioner v. Dishman Pharmaceuticals and Chemicals Ltd. — 2007 (210) E.L.T. 124 (Tribunal) — Referred [Paras 2, 4]
Commissioner v. Mold-Tek Technologies Ltd. — 2006 (205) E.L.T. 415 (Tribunal) = 2008 (12) S.T.R. 532 (Tribunal) — Referred [Paras 2, 4]
Coromandel Fertilizers Ltd. v. Commissioner — 2009 (239) E.L.T. 99 (Tribunal) — Referred [Paras 2, 4]
J.V. Strips Ltd. v. Commissioner — 2007 (218) E.L.T. 252 (Tribunal) — Referred.......... [Paras 2, 4]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Instruction F. No. 345/2/2000-TRU, dated 29-8-2000 .................................... [Para 4]
REPRESENTED BY : Shri S.K. Mall, SDR, for the Appellant.
Shri Paritosh Gupta, Advocate, for the Respondent.
[Order]. - Respondent had taken credit of service tax in respect of goods transport agency service and maintenance & repair service for the period from 31-12-06 to February 2008 in the months of March 2008. Proceedings were initiated by the Revenue to disallow the Cenvat credit so availed on the ground that Cenvat credit was not availed immediately after the payment of the bills and the Service tax. While the original adjudicating authority disallowed the credit and imposed a penalty equal to the credit taken, the Commissioner (Appeals) in the impugned order set aside the Order-in-Original and Revenue is in appeal against this decision.
2. The learned DR on behalf of the Revenue reiterated the grounds of appeal. According to the grounds of appeal, the learned Commissioner (Appeals) while considering the stay application had required the respondents to deposit an amount of Rs. 1 lakh on the ground that the reliance of the respondents on the decision of the Tribunal in the case of M/s. Coromandel Fertilizers Ltd. v. CCE, Visakhapatnam reported in 2009 (239) E.L.T. 99 (Tri.-Bang.) is not correct whereas while passing the final order he relied upon the same decision and took a contrary view. Further both the decisions in the case of Coromandel Fertilizers Ltd. and CCE, Ahmedabad v. Dishman Pharma & Chem. Ltd. reported in 2007 (210) E.L.T. 124 (Tri.-Ahmd.) are not applicable since in the first case credit was not taken because of uncertainty of eligibility in the second case the assessee had a doubt as regards admissibility of cenvat credit of special excise duty. Further the decision of the Hon’ble Supreme Court in the case of CCE, Jaipur v. Raghuvar (India) Ltd. reported in 2000 (118) E.L.T. 311 (S.C.) was cited to submit that in the absence of any specific period the credit has to be taken within a reasonable period. Further the decisions in the case of M/s. J.V. Strips Ltd.v. CCE, Rohtak reported in 2007 (218) E.L.T. 252 and CCE, Hyderabad v. Mold-Tech Technologies Ltd. reported in 2006 (205) E.L.T. 415 = 2008 (12) S.T.R. 532 were also cited to support the submission that six months is the reasonable period to take the credit.
3. The learned advocate on behalf of respondents submitted several decisions of the Tribunal to support his submission that credit can be taken at any time. Further he also submitted that in their own case for a different period, the Tribunal had taken a view that it is not necessary that credit should be taken within six months.
4. I have considered the submissions made by both the sides. As regards the decision of the Hon’ble Supreme Court in the case ofRaghuvar (India) Ltd., I take note of the fact that this very same decision was relied upon by the Tribunal in the case of Coromandel Fertilizers Ltd. to come to the conclusion that there cannot be any time limit. The Tribunal had taken note of the observations of the Hon’ble Supreme Court in para 13 while coming to this conclusion which is reported for better appreciation.
“Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor - It is not for courts to import any specific period of limitation by implication, where there is really none, though courts may always hold when any such exercise of power hold the effect of disturbing rights of a citizen that it should be exercised within a reasonable period.”
Therefore, I do not find the decision of the Hon’ble Supreme Court supporting the case of Revenue. I also do not agree with the submission that the decisions in the case of Coromandel Fertilizers Ltd. and Dishman Pharma & Chem. Ltd. are not relevant. What is to be considered is whether legally restriction to take credit can be imposed or not. The Revenue seeks to distinguish the reasons given for non availment of credit in the cases cited and present one. According to the Revenue if the credit is not taken because of the failure of the clerk, it would not be admissible but if it is taken because of ignorance or doubt as in the two decisions of the Tribunal in the case of Coromandel Fertilizers Ltd.and Dishman Pharma & Chem. Ltd., it may be admissible. I do not find that this is legally correct. The two decisions cited in the case of J.V. Strips Ltd. and Mold-Tech Ltd., it may be admissible. I do not find that this is legally correct. The two decisions cited in the case of J.V. Strips Ltd. and Mold-Tech Technologies Ltd. are rendered by Single Members but other decisions are of Division Benches. Further it is also noted that it is the case of respondents themselves while deciding similar issue in this case, the decision in the case of J.V. Strips Ltd. had been taken note of. In any case the decision of the Division Bench in the case of Coromandel Fertilizers Ltd. and Dishman Pharma & Chem. Ltd. are subsequent to the decisions relied upon by the Revenue. Further in the clarifications issued by the Board in Circular dated 29-8-2000 F.No. 345/2/2000-TRU, dated 29-8-2000, in para 10 it has been observed - “The idea is that if the manufacturer desires he can take the Cenvat credit at the earliest opportunity when the inputs are received in the factory. This, however, does not mean, not is it even intended that if the manufacturer does not take credit as soon as the inputs are received in the factory, he would be denied the benefit of Cenvat credit. Such an interpretation is not tenable.”
Thus even the view of the Apex Body of Central Excise & Customs Department namely Central Board of Customs & Excise does not support the appeal memorandum.
5. In view of the above discussion, I do not find any merit in the appeal filed by the Revenue and accordingly rejected the same.
(Dictated & pronounced in Court)
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