TMI Blog2014 (11) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... h the ld. Advocate that such observations are general in nature and are not relatable to the issues before the Tribunal. The Tribunal was required to decide the ‘lis’ between the Revenue and M/s Guwahati Carbons Limited and not the entitlement of credit by the recipient of the inputs from M/s Guwahati Carbons Limited. The said recipients were not before the Tribunal and as such the grievance of the learned Advocate is well appreciated - Decided in favour of assessee. - Appeal No.423 of 2010 - FINAL ORDER NO.53350/2014 - Dated:- 22-8-2014 - Ms. Archana Wadhwa and Mr. Rakesh Kumar, JJ. For the Appellant : Shri B. L. Narasimhan, Advocate For the Respondent: Shri Pramod Kumar, Jt. CDR JUDGEMENT Per: Archana Wadhwa: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e freight charges as also insurance charges in their assessable value. Accordingly, proceedings were initiated against the said units for re-determination of their assessable value. The said proceedings resulted in passing of the orders by the authorities vide which it was held that freight charges and insurance charges were not required to be included in the assessable value and consequently the said units have paid excess duty. The matter travelled upto the Tribunal, who vide their decision reported as CCE, Shillong vs. Guwahati Carbon Ltd. -2009 (243) ELT 307 (Tri. Kolkata) held that freight and insurance charges would not form part of the assessable value and the duty on the goods manufactured by the said units is required to be recalcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were neither before the Tribunal nor were part of the adjudication proceedings, which were assailed before the Tribunal. 5. Based upon the above observation of the Tribunal in the case of M/s Guwahati Carbon Limited, the Commissioner, vide his impugned order, denied the cenvat credit to the appellant to the extent of ₹ 2.46 crores approximately along with imposition of penalty of identical amount under Section 11AC of Central Excise Act. In addition, penalty of ₹ 5 lakhs stand imposed in terms of Rule 15(1) of the Cenvat Credit Rules. 6. Learned Advocate appearing for the appellant draws our attention to the fact that M/s Guwahati Carbon Limited was supplying their products, as raw materials, to various other manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the said view was reversed. It was held that once the duty was paid, higher CENVAT Credit could be availed and there was no justification for effecting recovery or ever imposing penalty. Further appeal of the Revenue before the Tribunal failed. It was observed: ..... The record reveals that the only charges levelled by the revenue was that the freight was added to the basic price at the time of clearance, which has boosted the excise liability. Other than this charge, there is no evidence brought to show that both parties are intentionally doing any act which was caused an evasion to the revenue. No intention of the parties has been proved to bring them to charge. Therefore, duty paid by M/s D.C.M. Engineering Ltd. having g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand upheld by Hon ble Punjab Haryana High Court. As such we fully agree with the ld. Advocate that the issue stand exclusively decided by the above referred decision and the observations made by the Tribunal in the case of C.C.E., Shillong vs. M/s Guwahati Carbons Ltd. - 2009 (243) ELT 307 (Tri.-Cal.), as regards the entitlement of credit by the input recipient cannot be adopted. We also agree with the ld. Advocate that such observations are general in nature and are not relatable to the issues before the Tribunal. The Tribunal was required to decide the lis between the Revenue and M/s Guwahati Carbons Limited and not the entitlement of credit by the recipient of the inputs from M/s Guwahati Carbons Limited. The said recipients were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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