Credit cannot be taken on any date as per appellant's choice by modifying the records at will

M/s GAMMON INDIA LTD Vs CCE (2015-TIOL-225-CESTAT-AHM225-CESTAT-AHM)

Facts of case:

Out of total confirmed demand of Rs . 10,20,790/- amount of Rs . 4,36,718/- was available to them as CENVAT credit for which cenvatable documents were existing with the appellant during the relevant period on which credit was not taken by the time audit was undertaken. That a revised ST-3 return was also filed by the appellant and CENVAT credit was taken in the CENVAT account as if available before the visit of the audit. That actual CENVAT utilization by CERA has been taken as Rs . 29,86,623/-, as per the wrong information inadvertently provided by the appellant, as against CENVAT utilization of Rs . 24,05,767/- during April 2006. That demand of Rs . 5,80,856/- as a result of appellant's error has been demanded by the lower authorities which in fact was not demandable. That this aspect has been duly noted by the orders of the lower authorities but no findings are given as to why the calculation errors explained by the appellant are not acceptable.

Held:

Heard both sides and perused the case records. It is observed that an amount of Rs . 4,36,780/-, out of the total amount demanded by the Revenue has been adjusted by the appellant by taking CENVAT credit on an earlier date, on the basis of some cenvatable documents for which no credit was taken by the appellant when the CENVAT register was verified by the visiting audit officers. Appellant can not take cenvat credit in the CENVAT account on a date earlier than the visit of the audit officers when such credit was not earlier reflected in the CENVAT account. If some credit was admissible on the basis of cenvatable documents existing with the appellant, but credit was not taken, then the same could have only been taken after the date of visit of the Audit officers. This aspect as discussed by the first appellate authority in Para 10 of the OIA dated 15.7.2013 is acceptable and the demand of Rs . 4,36,780/- along with interest, is sustainable against the appellant. It has been correctly held by the first appellate authority that if certain invoices were left out for which credit was not taken earlier then the same can be taken only as per the prescribed procedures and not on any date as per appellant's choice by modifying the records at will. Appeal filed by the appellant with respect to demand of Rs . 4,36,780/- along with interest is therefore, rejected.