Sanofi India Limited Vs C.C.E. & S.T. (CESTAT Ahmadabad)
The CESTAT, Ahmedabad in Sanofi India Limited v. C.C.E. & S.T.- SURAT-II [Excise Appeal No. 10583 of 2013 in Final Order No. A/10115-10117/2023 dated January 25, 2023] has held that, once the assessee had reversed the proportionate credit attributed to the exempted goods, no demand of 10% of the value of goods can be raised by the Revenue Department. Further held that, reversal of Cenvat credit is one of the option provided and it is upon the assessee to avail such option and the Revenue Department cannot arbitrarily choose any particular option and impose on the assessee. Remanded the matter back due to failure in examining the reversal of Cenvat credit and non-calculation of the proportionate credit. Moreover, set aside the personal penalty in the matter.
Facts:
Sanofi India Limited (“the Appellant”) is engaged in manufacturing of excisable goods falling under Chapter 29 & 30 of the Schedule to Central Excise Tariff Act, 1985 (“the Central Excise Act”) and is availing the benefit of exemption on Insuman, Lantus, Campto Injection and Granocyte Injection (“the goods”) and is also clearing some goods at nil rate of duty. Further, the Appellant started availing Cenvat credit on various input services from March, 2005.
The Revenue Department (“the Respondent”) alleged that, since the Appellant is availing the Cenvat credit in respect of common input services, they are liable to pay 10% of the value of exempted goods or goods attracting nil rate of duty in terms of Rule 6(3) of the Cenvat Credit Rules, 2004 (“the Cenvat Credit Rules”). Further, imposed the personal penalty on the Appellant.
However, the Appellant submitted that they have reversed the entire credit of common input services used in the manufacture of dutiable as well as exempted goods, therefore, the demand of 10% of the value of the exempted goods in terms of Rule 6(3) of the Cenvat Credit Rules will not sustain. Further, the demand was raised for the period March, 2005 to January, 2007, whereas, the Show Cause Notice (“SCN”) was issued on February 26, 2010, therefore, the entire demand is beyond limitation and further as per the Rule 6 of the Cenvat Credit Rules, the Appellant is required to reverse the proportionate credit attributed to the exempted goods and the Appellant has reversed entire credit on the common input service therefore, the amount over and above the proportionate credit may be adjusted against the liability of interest, if any arise.
Issue:
Whether the Appellant is liable to pay the demand, even after reversal of the entire Cenvat credit on common input service?
Held:
The CESTAT, Ahmedabad in Excise Appeal No. 10583 of 2013 in Final Order No. A/10115-10117/2023 held as under:
