By TIOL News Service

ALLAHABAD, JAN 27, 2017: THE appellant is engaged in the manufacture of Chewing Tobacco and registered with Central Excise Department and availed Cenvat facility. The appellant has procured plastic laminated packing pouches as their inputs for packing their finished goods and avail Cenvat credit of Rs.2,00,879/-. Subsequently, Hon'ble Supreme Court ordered that plastic laminated packing pouches should not be used for packing of Chewing Tobacco. The said order of Supreme Court was pronounced on 11th May, 2011 and the Cenvat credit, stated above, was taken by the appellant in their books of accounts for the period from March, 2009 to March, 2011, much before said pronouncement by the Hon'ble Supreme Court. It appeared to Revenue that since the plastic laminated packing pouches was brought into cannot be used after 11th May, 2011, the Cenvat credit of Rs. 2,00,879/- availed on the same is recoverable.

The appellant submitted before the Original Authority that the plastic laminated packing pouches were in use for a long time for packing of products Chewing Tobacco and therefore, they were eligible inputs for a long time and Cenvat credit was availed on the same does not become ineligible because the said plastic laminated packing pouches material cannot be used for packing in the final product. They further stated that at the time credit was taken there was no final order passed by Hon'ble Supreme Court about use of the plastic laminated packing pouches for the packing of goods in question and therefore they were legally entitled to take Cenvat credit at the time of receipt of such packing material as input.

After hearing both sides, the Tribunal held:

+ The date on which Cenvat credit was taken by the appellant the inputs on which the Cenvat credit was taken were regularly in use for packing the finished product and therefore the Cenvat credit availed was eligible. The Cenvat credit which is validly taken needs to be reversed only when the inputs are cleared as such. Rule 14 of Cenvat Credit Rules, 2004 provided for recovery of irregularly availed Cenvat credit and it is beyond the scope of said Rule 14 of Cenvat Credit Rules to recover the Cenvat credit which was validly taken. It is therefore held that the Show Cause Notice is misconceived and therefore, the Show Cause Notice, Order-in-Original and Order-in-Appeal are set aside and the appeal is allowed.

(See 2017-TIOL-242-CESTAT-ALL)