CBEC clarification regarding availment of Cenvat credit on Inputs/ Input Services after six months
Background: The CBEC vide Notification No. 21/2014-CE (NT), dated July 11, 2014 (Applicable w.e.f September 1, 2014) [Notification No. 21], has amended Rule 4(1) and Rule 4(7) of the Cenvat Credit Rules, 2004 (the Credit Rules) to fix a time limit of six months from the date of issuance of any of the documents specified in Rule 9(1) thereof, for availment of the Cenvat Credit on Inputs and Input Services.
Clarification by the CBEC: The CBEC vide Circular No: 990/14/2014-CX-8 dated. November 19, 2014 (“the Circular”) has clarified that the purpose of the amendment made by Notification No. 21 is to ensure that after the issuance of a document under Rule 9(1) of the Credit Rules, Cenvat credit is taken for the first time within six months of the issue of the document. Once this condition is met, the limitation has no further application. The relevant text of the Circular is reproduced here in below:
“2. Concerns have been expressed by trade that in view of above changes, the re-credit taken in following three situations may be hit by the time limit of six months prescribed:
i. 3rd proviso to Rule 4(7) of CCR, 2004 prescribes that if the payment of value of input service and service tax payable is not made within three months of date of invoice, bill or challan, then the CENVAT Credit availed is required to be paid back by the manufacturer or service provider. Subsequently, when such payment of value of input service and service tax is made, the amount so paid back can be re-credited.
ii. According to Rule 3(5B) of CCR, 2004, if the value of any input or capital goods before being put to use on which CENVAT Credit has been taken, is written off or such provisions made in Books of Account, the manufacturer or service provider is required to pay an amount equal to credit so taken. However, when the inputs or capital goods are subsequently used, the amount so paid can be re-credited in the account.
iii. Rule 4(5)(a) of CCR, 2004 prescribes that in case inputs sent to job worker are not received back within 180 days, the manufacturer or service provider is required to pay an amount equal to credit taken on such inputs in the first instance. However, when the inputs are subsequently received back from job worker, the amount so paid can be re-credited in the account.
3. The matter has been examined. The purpose of the amendment made by Notification No. 21/2014-CE (NT) dated 11.07.2014 is to ensure that after the issue of a document under sub-rule (1) of Rule 9, credit is taken for the first time within six months of the issue of the document. Once this condition is met, the limitation has no further application. It is, therefore, clarified that in each of the three situations described above pertaining to Rule 4(7), Rule 3(5B) or Rule 4(5) (a) of CCR, 2004, the limitation of six months would apply when the credit is taken for the first time on an eligible document. It would not apply for taking re-credit of amount reversed, after meeting the conditions prescribed in these rules.”
Other Open issues – Not clarified:
Even though the CBEC has clarified non-applicability of six months time limit while availing re-credit in terms of the Credit Rules but, there are certain other issues still exists in this regard, which requires immediate attention of the Board:
(i) SSI Unit crossing Exemption limit: In terms of Rule 3(2) of the Credit Rules, a manufacturer or producer of final products is allowed to take Cenvat credit of the duty paid on inputs lying in stock or in process or inputs contained in the final products lying in stock, on the date on which any goods manufactured by the said manufacturer or producer cease to be exempted goods or any goods become excisable.
Issue: Where a manufacturer availing SSI exemption, crosses the exemption limit, whether transitional credit is available if the invoices under which the above category of inputs were purchased are beyond six months from the date of taking Cenvat credit?
(ii) Cenvat credit on goods received after re-conditioning, repairs, etc.: Under Rule 16 of the Central Excise Rules, 2002, where any goods on which duty had been paid at the time of removal are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take Cenvat credit of the duty paid as if the goods are received as inputs under the Credit Rules and utilize the Cenvat credit according to the Credit Rules.
Issue: Whether the newly added proviso to Rule 4(1) of the Credit Rules, which talks about inputs, would apply to Cenvat credit taken on finished goods received by the manufacturer in the factory beyond 6 moths of its removal from the factory?
(iii) Invoices issued prior to September 1, 2014: Notification No. 21 amending Rule 4(1) and Rule 4(7) of the Credit Rules is effective from September 1, 2014.
Issue: Whether the time limit of six months prescribed for availing Cenvat credit would apply to the invoices issued prior to September 1, 2014?
We request esteemed readers to write back to us for any other related issue(s) pertaining to time limit of 6 months for availing Cenvat credit on Inputs and Input Services in the light of Notification No. 21 read with the Circular issued by the CBEC.
(iv) Payment of Service tax under Partial Reverse Charge: As per second proviso to Rule 4(7) of the Credit Rules, Cenvat Credit in case of input services falling under Partial
Reverse Charge mechanism, can be claimed on or after the day on which payment is made of the value of input service and the Service tax paid or payable as indicated in invoice, bill or, as the case may be, challan referred to in Rule 9of the Credit Rules.
Issue: How Cenvat credit would be admissible in cases where the payment of invoice is made after a period of 6 months from the date of invoice?
(v) Where Dutiability/ taxability of a final product or service is under litigation:There may be situation where Dutiability of a final product or taxability of any service, is in dispute/ litigation, before the Adjudication Authority for a period of more than six months for adjudication. Later on it is adjudicated that a particular product or service (which was under litigation) is dutiable or taxable.
Issue: Whether Cenvat credit on Inputs/ Input Services beyond six months would be available for the past period of dispute?
Hope, the Board will provide clarifications to above issues as well.