TMI Blog2011 (12) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 46A of the IT Rules. 2. The CIT(A) has erred in accepting the assessee s submission that the excise duty liability was adjusted from the CENVAT credit without giving any clear finding with regard to the availability of specific amount of CENVAT credit as on the last date of the accounting year ended 31.03.2006. 3. The facts relating to the issues are stated in brief. The assessee is carrying on the business of manufacture and sale of water soluble polymers. During the course of scrutiny proceedings relating to the year under consideration, it was noticed by the assessing officer that there was an outstanding liability of ₹ 14,20,276/- as at the year end on account of excise duty, to which the provisions of section 43B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, vide assessee s letter dated 24.12.2009. We have gone through the paper book and notice that the assessee has furnished the copies of RG 23 register along with the letter dated 24.12.2009 filed before the assessing officer. We also notice that the Learned CIT(A) has referred to the very same documents in the course of appellate proceedings. Hence, in our view there is no violation of rule 46 A on the part of the first appellate authority, as alleged by the department. Accordingly, we dismiss the ground raised on this issue. 5. The next issue relates to deletion of disallowance made under section 43B of the Act. In this connection, we extract below the observations made by the Learned CIT(A) and the decision taken by him. 3.3 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt maintained under 173(g) of the Central Excise Act, 1944 and CENVAT credit. 3.4 The appellant further stated that under the Central Excise law, there are two ways in which the output liability of central excise can be paid either through Personal Ledger Account (PLA) of the manufacturer or through utilization of Cenvat Credit Receivable Account, it tantamounts to a constructive payment of excise duty. The appellant has paid the excise duty on closing stock by utilization of the Cenvat Credit account before the due date of filing the return of income. The appellant submits that adjustment made through RG-23 account constitutes valid payment as the excise duty payable is always adjusted through cenvat credit. The appellant in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handigarh in the case of Dy. CIT V Glaxo Smithkline Consumer Healthcare Limited 107 ITD 343 (CHD)(SB) it is to be presumed that the assessee exercises his option to set off MODVAT account against excise liability, which amounts to payment of excise duty and accordingly the assessee is entitled to deduction under section 43B. 4. I have considered the arguments of the appellant. It is not disputed that one of the modes of payment of excise duty under the Excise Act is adjustment of MODVAT credit. It is also not disputed that the auditors vide 3CD report clarified that the outstanding amount has been paid before filing of return by adjustment as per CENVAT register. The case of Hawkins Cookers Ltd. cited (Supra) squarely covered the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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