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2013 (11) TMI 875 - CESTAT NEW DELHIExemption notification no. 5/98 - use of power - Examination of chart and reply to the show cause notice - Quantum of demand of duty – Revenue was of the view that the Goods manufactured at different factory and cleared from a different factory and the assesse took the wrong availment of the Benefit of Notification No. 5/98 – Held that:- The Commissioner has not considered the chart and has not given a categorical finding as to whether the traded goods were also included in the value of total clearance - the fact that the lacquered/polished sheets which were being cleared by the appellant, has also been held to be excisable goods by referring to the fact that appellant was paying the duty on the same in their unit located at C-18A cannot be appreciated - The same is not depending upon the fact that the assessee was himself clearing and paying the duty on the said sheets, may be on account of lack of knowledge but the issue is dependent upon the declaration of law by the Courts. Appellant relied upon METLEX (I) PVT. LTD. Versus COMMISSIONER OF C. EX., NEW DELHI [2004 (2) TMI 387 - SUPREME COURT OF INDIA] which has to be considered by the Commissioner - In the case of subsequent confirmation of demands, benefit of Canvat credit has to be allowed to the assessee, subject to production of eligible Cenvat credit invoices – Relying upon Formica India Division vs. CCE [1995 (3) TMI 98 - SUPREME COURT OF INDIA] - Order set aside and the matter remanded back to the Commissioner to examine the chart prepared by the appellant and submitted to him along with reply to the Show cause notice – Decided in favour of Assessee.
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