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Cenvat Credit – Availment and Utilisation

December 9th, 2016

1 Eligible Cenvat Credit [Rule 3(1) of Cenvat Credit Rules]

¨     Excise duty paid on input goods, service tax paid on input services and excise duty paid on capital goods

¨     CVD (in case of imports which is equal to excise duty)

¨     Special CVD (4%) on imports – credit only to manufacturers

¨     No credit of Education Cess and SAHE cess on imports after 17-3-2012 as that cess is only of customs duty and not of CVD.

¨     Education cess and SAHE cess paid on excise duty and service tax (not on imported goods)

¨      Record of credit of education cess and SAHE cess to be kept separately as the credit cannot be used for basic duty and service tax, but vice versa allowable i.e. Credit of basic excise duty and service tax can be utilised for payment of education cess and SAHE cess.

2 Credit on receipt of Invoice

¨    Cenvat credit must be availed within one year from duty paying document. Otherwise, the Cenvat credit lapses

Credit can be taken on receipt of invoice, but in respect of Cenvat credit of service tax, if payment is not made to service provider within 3 months, credit is to be reversed.

¨     Proportionate credit of service tax if proportionate amount paid (No specific provision in Rules, but this view is based on principle of harmonious interpretation of law).

¨     No such restriction in respect of excise duty – Credit is available even if no payment is made to supplier-manufacturer of goods.

3 Utilisation of Cenvat Credit

¨     All taxes and duties specified in rule 3(1) of Cenvat Credit Rules form a ‘pool’. This credit can be utilised by manufacturer of excisable goods or provider of taxable service, for payment of any tax or duty as specified in rule 3(4) of Cenvat Credit Rules.

¨     One to one relation is not required (However, you cannot ignore rule 6 of Cenvat Credit Rules).

¨     Cenvat credit of basic excise duty and service tax can be utilised for payment of education cess and SAHE cess but vice versa is not permissible.

¨     An assessee who is manufacturer and also service provider can utilise credit of excise duty for payment of service tax and vice versa.

4 Eligible duty paying documents

¨     Original or Duplicate Invoice of Manufacturer, Registered Dealer’s Invoice, Bill of Entry, Supplementary Invoice.

¨     Where service tax is paid on reverse charge basis, Cenvat credit can be availed on basis of own GAR-7 or other duty paying document.

¨     Xerox copy is not permissible.

¨     Endorsed Invoice/Bill of Entry permissible

¨     Defect in document – Permission of AC/DC required to avail Cenvat Credit.

¨     If invoice lost, permission of AC/DC required to take Cenvat credit (difficult to get such permission, in absence of specific provision in Rules).

Document is eligible only for one year from date of duty paying document for taking Cenvat credit

5 Eligibility of Cenvat Credit

¨     No time limit for availing Cenvat Credit – can be taken even after 3-4 years (delay should be for bona fide reasons)

¨     Registration and Eligibility of Cenvat Credit are independent issues – Credit prior to registration can be availed (if otherwise eligible)

6 No challenge to tax paid by supplier or service provider

¨     Service tax and duty paid by service provider is eligible as input – Excise Officers at end of the receiver cannot challenge tax or duty paid at end of supplier-manufacturer or service provider.

¨     Entire Cenvat credit of service tax paid by provider of service and excise duty paid by supplier-manufacturer of goods is eligible for Cenvat credit.

¨     Receiver cannot be penalised for default of supplier-manufacturer or service provider

7 Utilisation of Cenvat Credit

¨     Credit available as at end of month/quarter can be used even if duty payable on 5th or 6th on following month/quarter

¨     Credit cannot be used when service tax is payable under reverse charge. That tax has to be paid by cash i.e. challan only.

¨     No time limit for taking Cenvat Credit – can be carried forward without any time limit

8 Refund of Cenvat Credit – Rule 5

¨     Refund of Cenvat credit on proportionate basis of exports of goods and services

¨     Procedure as prescribed in Notification No. 27/2012-CE(NT) dated 18-6-2012 should be followed.

¨     Exports of service can claim rebate following the procedure prescribed in Notification No. 39/2012-ST dated 29-12-2012.

¨     General Experience in getting refund or rebate is very bad.

¨     Assessee should take Cenvat Credit and utilise instead of claiming refund if he is in position to utilise the Cenvat credit [some litigation possible due to defective drafting of rule 5, but in my view, assessee can take Credit, instead of applying for refund]

9 Rebate of input service tax credit to exporters

¨     Rebate of service tax paid on input services to exporters even if they are not manufacturers – Notification No. 41/2012-ST dated 29-6-2012

¨     Exemption for services to foreign commission agent and Goods Transport Agency Services  – subject to procedures as specified in Notification Numbers 42/2012-ST dated 29-6-2012and 31/2012-ST dated 20-6-2012.

¨     Manufacturer – better avail Cenvat Credit if can be used, instead of following the clumsy rebate or exemption procedure

10 Other Issues of Cenvat

¨     Proper Records for five years

¨     Transfer/merger or undertaking – Cenvat Credit can be transferred

¨     Interest for wrongful availment and utilisation of Cenvat Credit. If credit taken but not utilised, no Cenvat credit.

¨     Penalty is imposable for wrongful utilisation

 

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