Penna Cement Industries Ltd Vs Commissioner of Central Tax (CESTAT Hyderabad)
Summary: CESTAT Hyderabad partly allowed the appeal of Penna Cement Industries Ltd concerning CENVAT credit of ₹8,37,49,447 on Clean Energy Cess. The Commissioner had held that the appellant was not entitled to avail such credit and had confirmed its denial and recovery. Since the assessee had already reversed the amount under protest, the Commissioner appropriated the reversal, vacated the protest and also imposed a penalty of ₹5,000 under Rule 15(1) of the CENVAT Credit Rules, 2004.
The Tribunal noted that the short dispute was whether Clean Energy Cess was available as CENVAT credit under Rule 3 of the CENVAT Credit Rules, 2004. Both sides acknowledged that an earlier Final Order dated 16.07.2019 had disposed of nine appeals, including an appeal concerning the present appellant, on the same issue. In that order, the Tribunal had held that Clean Energy Cess, not being covered under Rule 3, was not available as CENVAT credit, although penalties had been set aside. The appellant informed the Tribunal that the earlier order had been challenged before the Andhra Pradesh High Court but that there was no stay. Finding no reason to differ from its previous order, CESTAT upheld the remainder of the impugned order but set aside the ₹5,000 penalty. The appeal was consequently partly allowed.
FULL TEXT OF THE CESTAT HYDERABAD ORDER
This Appeal has been filed to assail the Order-in-Original dt.25.01.20181 passed by the Commissioner in which he decided the proposals made in the SCN dt.09.11.2017 and held that the appellant, M/s Penna Cement Industries Ltd, was not entitled to avail Cenvat credit on the Clean Energy Cess which it had paid and therefore, confirmed denial and recovery of Cenvat credit of Rs.8,37,49,447/-. Since the assessee had already reversed this amount on being pointed out and under protest, he appropriated the amount so reversed and vacated the protest. He also imposed penalty of Rs.5,000/- only in terms of Rule 15(1) of the Cenvat Credit Rules, 20042.
2. The short point of dispute in this case is whether Clean Energy Cess was available as Cenvat credit to the appellant under Rule 3 of CCR. Both sides fairly submit that in Final Order No. A/30684-30692/2019 dt.16.07.2019, this Bench had disposed of 9 appeals pertaining to different assessees including the appellant herein on the same issue. After hearing both sides, through a detailed order, this Tribunal had held that Clean Energy Cess, not being covered under Rule 3 of CCR, is not available as Cenvat credit to the assessees. Accordingly, the denial of Cenvat credit on Clean Energy Cess was upheld but the penalties were set aside.
3. Learned Counsel for the appellant submits that the aforesaid order has been assailed before the Hon’ble High Court of Andhra Pradesh but there is no stay against the order.
4. We find no reason to differ from our previous order. Following our previous order, we modify the impugned order to the extent of setting aside of penalty of Rs.5,000/- and uphold the rest of the order.
5. Appeal is partly allowed as above.
(Dictated and pronounced in the Open Court)
Notes:
1 Impugned Order
2 CCR
