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2012 (11) TMI 1002 - AT - Central ExciseAvailment of CENVAT credit - Product already exempted by classifying the product under SH 6807.10 - Debit made in CENVAT Credit account to make pre deposit - Contravention of provisions of Central Excise Act - Held that:- It is true that, where the final product is exempted, the question of does not arise - appellant was acting in pursuance of the Tribunal’s Stay Order dated 20-12-2007 when they debited the amount of Rs. 6,82,965/- in RG 23A part II on 10-3-2008. Apparently, they reported this debit in CENVAT account to the Tribunal and the latter recognized it as valid pre-deposit under Section 35F of the Central Excise Act. At that time, no objection was raised by the respondent. Had it been the case of the respondent that the appellant had not made any valid pre-deposit and hence their appeal should not be considered on merits, this objection should have been raised before the Tribunal through the authorized representative of the department. But this was not done - pre-deposit could be made through debit in CENVAT account. This apart, the facts and circumstances narrated hereinbefore are enough to indicate that the show-cause notice in question was issued regardless of the fact that the assessee by debiting the amount in their CENVAT account was only implementing the order passed by this Tribunal under Section 35F of the Central Excise Act - Decided in favour of assessee.
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