TMI Blog2000 (8) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Schedule for supply to Defence. For these multi functional machine tools (F.M.S), the Appellants imported inputs from abroad. The credit of countervailing duty (CVD) was taken after filing the declaration under Rule 57G. They were maintaining a combined RG 23A Part II for all Machine tools falling under Chapter 84 and utilised the credit taken on imported components for Machine tools falling under Chapter 84 other than FMS. Later, when FMS were cleared for Defence, duty was paid partly through PLA and RG-23A Part II. The admitted position is that items used in FMS were not capable of being used in the machine tooling cleared in RG 23A Part I debits. 3.The Department issued show cause notices and the Learned Commissioner confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during September, 1994 in relation to which credit was taken on imported components, the Appellants paid duty amounting to Rs. 3,26,76,411/- through PLA. It is submitted that the total amount of the credit earned on inputs intended for FMS was Rs. 3,06,31,306/-. The total amount of duty paid on FMS was Rs. 86,40,998/- through RG 23A Part II and Rs. 3,26,76,411/- through PLA. The utilised credit from Modvat Account relating to FMS for other Machine tools, was much less than the amount paid on FMS through PLA. The appellants submit that if only the Appellants had not utilised the credit on FMS inputs for other Machine tools to the extent of Rs. 2,21,17,177/- the said credit would have been available in Modvat credit, and to that extent the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for colour TV sets, the Hon'ble Tribunal permitted adjustment of credit in PLA when it was noted that even if the irregularly availed credit was restored, the Party cannot utilise the same as by that time black and white TV sets became exempt from duty. 5.Learned DR on the other hand relies on the case of Kinetic Motor Company Ltd v. CCE as in 2000 (36) RLT 793 (CEGAT) wherein it has been held that the credit earned on inputs of mopeds is not permissible to be utilised for payment of duty on scooter as the said inputs are not capable of being used for manufacture of scooter and he reiterates the findings of the Commissioner. 6.We have considered the matter and we find - (a) The decisions in the cases, Fedder Lloyd Corporations - 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should succeed. (b) We find that the demands have been made under the provision of Rule 9(2) read with the time period proviso of Section 11A(1) and confirmed accordingly. We cannot find any reason to consider removals made to be clandestine or without assessment when made on prescribed documents by debits of duty made on credits availed and accounted for in a consolidated manner as prescribed by law and permissible by Board's instructions mentioned by the appellants i.e. T.No. 60187, circular dated 4-5-94, especially when we find that overall there is no loss of revenue in ultimate analysis. For invoking a demand under Rule 9(2), a contravention of Rule 9(1) is necessary i.e. removal has to be clandestinely and without assessment. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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