Financial Resource

When it comes to the departmental adjudication then it is the duty of the assessee as well as the adjudicating authority to interpret the law in its true essence and any effort to transgress the boundary of interpretation is strictly prohibited. In this background let us examine Rule 4 of the CENVAT Credit Rules, 2002 in order to ascertain the time limit for utilizing the Cenvat credit. Rule 4 (1) of the Cenvat credit rules is as follows:

“(1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service:
Provided that in respect of final products, namely, articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who get such final products manufactured on his behalf, on job work basis, subject to the condition that the inputs are used in the manufacture of such final product by the job worker.”

So, rule 4 (1) of the Cenvat credit rules plainly says that Cenvat credit in respect of the inputs “may be taken immediately”, the word immediately should not be interpreted in the wider or limited sense than it is intended by the legislature. The Wester’s Comprehensive Dictionary[1] defines the word immediately as follows:

“Immediately”- In an Immediate manner, without lapse of time, instantly, at once.

The above is the literal definition of the word “immediately”. Now let us see how the department has interpreted the word “immediately” as used in the Cenvat credit rules. The central board of excise and custom (CBEC) vide its letter dated 29.08.2000 bearing No. 345/2/2000 has clarified the word immediately as under:

“10.    Rule 57AC provides that CENVAT credit may be taken immediately on receipt of inputs in the factory. Some apprehensions have been expressed that if the CENVAT credit is not taken “immediately”, like within 24 hours or so, the field officers may deny the CENVAT credit. 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, nor 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.”

So, now it is clarified by the department that  the manufacturer can take the Cenvat credit at the earliest i.e. the moment the goods are received in the factory or inputs are received in the premises of service provider. But it is further clarified in this circular that neither it means nor it is intended that manufacturer cannot take the credit later on, if it does not take the credit immediately. One should notice that in Rule 4 the words chosen by the legislature is “input may be taken immediately” and under no circumstances the word “may be” can be replaced by the word “must be”. Rule 4 of the Cenvat Credit Rule is beneficial piece of legislation and the sole purpose of enactment of such rule is to give credit of the input to the manufacturer or provider of the an output service so that they may be saved from the cascading effect of the double taxation.

Everybody wants to take the Cenvat credit ‘Immediately’ because duty liability can be met successfully by using those credit. But their may be many reasons of not taking credit immediately such as dispute regarding admissibility of the input or the manufacturer may be unaware that on a particulate goods or services he is entitled for Cenvat credit and the legitimate credit can not be denied on the ground that it was not taken immediately and this is the reason why any outer limit is not prescribed by the law for the taking and utilising the Cenvat credit.

One thing is settled the wordings of the statue cannot be extended or shrunk by way of implication. Once the outer limit for availing the Cenvat credit is absent  from the rule book the same cannot be prescribed by the department by way of implication. The Hon’ble apex court in the case of CCE Jaipur V. Raghuwar India Ltd. [2000 (118) ELT 311 (S.C.)] held as follow:-

“That 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 a consequence of creation and destruction of right and therefore specifically enacted and prescribed therefore. It is not for the course to import any specific period of limitation by implication where there is really none.”

The Hon’ble tribunal in following cases has already held that cenvet credit can not be denied on the ground of late availment:-

a)      Bharat Heavy Electricals V CCE Chennai [2000 (122) E.L.T 256]

b)      Steel Authority of India limited V.CCE Raipur [2001 (129) E.L.T 459]

c)      Tamilnadu Petro Product limited V. CCE Chennai [2003(160) E.L.T 199]

d)      Dishman Pharma & Chem. Ltd. [2007 (210) ELT 124]

e)      Coromandel Fertilizers Ltd. [2009 (239) ELT 99]

In adjudication, department always acts surprisingly but some times it acts shockingly. In one of the case the Ld. appellate authority (Commissioner Appeals) while adjudicating the issue the late availment of Cenvat credit under Rule 4(1) compared the cenvatable invoice with Bill Of Exchange (without telling who will honour such bill of exchange). He did not stop there, he prescribed a time limit of three months for availing the Cenvat credit and further held that the decision passed by the Hon’ble tribunal in Dishman Pharma and Coromandel Fertilizer was per incuriem. Perhaps while sitting in Adjudication as Quasi-Judicial Authority, he had probably forgotten that order of the Hon’ble tribunal are binding on him and the comment of order being per incuriem can be passed only by the coordinate Bench. This is classic example of judicial indiscipline which I sincerely hope that must be taken care of by the Adjudicating Authority in future. Further he forgot the basic lesson of confining himself to Show Cause Notice.

So law is settled benefits of rule 4 (1) of cenvat Credit Rule 2002 can not be denied to the assessee on the ground of late availment. The only thing which the department is to ascertain that the inputs were received in the factory and were used in the manufacturing or proving in output service. Since no outer limit is given and the same can not be denied even if it taken after long time, the Hon’ble tribunal in Coromandel Fertilizer case Supra while allowing the Cenvat Credit which was taken after 3 to 7 years of receipt of inputs  held as follows;-

“When the law is settled on the issue, there is no justification to deny the credit on the ground that it is availed after a long time. In any case, the Cenvat Credit rules have not prescribed any outer time limit. In view of this, we do not find any merit in the impugned order. We set aside the same and allow the appeal with consequential relief.”

[1] The New International Webster’s Comprehensive Dictionary of the English Language- Deluxe Encyclopedic Edition, 2004, Page No. 631

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