BMW INDIA PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petition challenges the show cause notice issued to the Petitioner on 6 -12 -2013 thereby inter alia calling upon the Petitioner to show cause as to why total inadmissible Cenvat Credit amounting to Rs. 20,78,77,048/ - should not be demanded and recovered from them under the provisions of Section 11A(5) of Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004; so also as to why an interest at appropriate rate should not be charged from them on the amount of Cenvat Credit under the provisions of Section 11AA of Central Excise Act, 1944 read with Section 11A(15) and Rule 15 of the Cenvat Credit Rules, 2004; and also as to why penalty should not be recovered from them under Section 11AC(1)(b) of Central Excise Act, 1944 read with Rule 15 of the Cenvat Credit Rules, 2004. Shri N. Venkatraman, learned senior Counsel appearing on behalf of the Petitioner submits that for the said period earlier show cause notice was issued to the Petitioner on 9 -11 -2012. The learned Senior Counsel for the Petitioner submits that the said show cause notice was issued on the premise that though the activities of the Petitioner could not strictly come within the ambit of definition of word "manufacturing" by deeming provision. It was included in the term "manufacture". He submits that the Petitioner did not dispute with regard to the said position and went before the Settlement Commission. He submits that an issue before the learned Settlement Commission was as to whether prior to the period of registration, the Petitioner was entitled to avail Cenvat Credit or not. He submits that the Petitioner had relied upon the Judgment of the Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions Private Limited v. CST, : [2012 (27) S.T.R. 134 (Kar.)] which holds that there is no bar on a manufacturer availing Cenvat credit even if it is not registered. He submits that not only that but the Petitioner had relied on two judgments of the learned Settlement Commissioner itself in support of the said proposition. It is submitted that though the learned Tribunal had given an opportunity to the Revenue to point out Judgments taking contrary view, the Revenue did not produce any judgment before the Settlement Commission and as such the learned Tribunal had held that the claim for Cenvat credit of the additional duty and special additional duty paid at the time of import, towards payment of Central Excise duty in the present case should be allowed. He therefore, submits that the impugned show -cause notice which seeks to reopen the same issue is not permissible in view of Section 32M of the said Act.

(2.) SHRI Rao, learned Counsel for the respondents submits that the Petitioner has approached this Court at a premature stage. He submits that the petition is only challenging the show cause notice. He further submits that the show cause notice which was the subject matter of the learned Settlement Commission is different. He therefore submits that Writ Petition be dismissed in limini.

(3.) IT will be relevant to refer to Section 32M of the said Act which reads thus: