Page 77 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] CONTINENTAL ENGINES PVT. LTD. v. COMMR. OF CGST, ALWAR 403
receipt of materials/inputs the appellant prepares goods receipt report and
thereafter makes entries in their input register and also in RG-23A Part II - Cen-
vat register. According to the appellant, as per the list of invoices given in para
8.5 of the table of facts, in respect of 35 invoices, the appellant though have
availed the Cenvat credit and made entries in the records within a month or two
of the receipt of the goods however the invoices were subsequently found that
due to accounting error, they have availed short Cenvat credit. For example with
respect to invoice No. 69, dated 5 May, 2015 wherein the total Cenvat credit was
Rs. 4,875/- but due to clerical error credit was taken of Rs. 4,825/- on 21 May,
2015. On such error subsequently found, the differential amount of Rs. 50/- was
taken as credit on 3 November, 2016. Similar issue of 34 invoices, in question,
where admittedly credit was taken within a period of 60 days from the receipt of
the invoice along with the goods. Only the credit found to be short taken, though
eligible, has been subsequently taken by way of rectification entry on 3 Novem-
ber, 2016.
4. The show cause notice dated 14 June, 2017 was issued pursuant on
which as it appeared to Revenue that taking of such credit which had been taken
short earlier is ineligible under the 3rd proviso to Rule 4(1) of Cenvat Credit
Rules, 2004. The said rule reads as follows :-
“Rule 4. (1) The Cenvat credit in respect of inputs may be taken immedi-
ately on receipt of the inputs in the factory of the manufacturer or in the
premises of the output service or in the premises of the job worker, in case
goods are sent directly to the job worker on the direction of the manufac-
turer or the provider of output service, as the case may be :
Provided also that the manufacturer or provider of output service
shall not take Cenvat credit after one year of the date of issue of any of the
documents specified in sub-rule (1) of Rule 9”.
5. The Learned Counsel states that such credit is by way of rectification
entry and is not a case of taking of Cenvat credit for first time as stated in
Rule 4(1). Accordingly, she prays for allowing the appeal with consequential
benefit. She has also relied on the following ruling in the cases of :
(i) Voss Exotech Automotive Pvt. Ltd. v. C.C.E., Pune-I reported in 2018
(363) E.L.T. 1141 (Tri. - Mumbai); and
(ii) Commissioner of Central Excise, Lucknow v. Gyan Packaging India (P)
Ltd. reported in 2007 (218) E.L.T. 255 (Tri. - Del.)
6. The Learned Authorized Representative of Revenue have relied up-
on the impugned order. The Learned Authorized Representative further states
that this fact of short availed credit was not pleaded before the Adjudicating Au-
thority.
7. Having considered rival contentions and the cases cited before me, I
find that under the facts and circumstances it appears that the appellant have
taken Cenvat credit within time permissible on the invoices, in question, howev-
er due to clerical error the credit was short availed. This fact is apparent on the
face of record as demonstrated before this Tribunal. I hold that in case of such
short credits subsequently taken, the third proviso to Rule 4(1) of Cenvat Credit
Rules shall not be applicable. Accordingly I allow this appeal by way of remand
to the Adjudicating Authority setting aside the impugned order. The Adjudicat-
ing Authority is directed to verify the fact and if the credits, in question, have
been taken by way of rectification of short paid credit, the same shall be allowed.
Accordingly, I also direct the appellant to appear before the Adjudicating Au-
GST LAW TIMES  23rd April 2020  197