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2013 (9) TMI 378 - AT - Central ExciseWhether duty paid u/s 35F (as pre-deposit) is available as Cenvat Credit - Cenvat Credit of duty paid against the stay order by the assessee from the supplying unit of goods against supplementary invoice was availed at the receiver unit - demand of differential duty - Penalty u/s 11AC - The Appellants were manufacturers of non-ferrous metals and their by-products - Revenue was of the view that the cost arrived at was not proper and that a different cost construction method had to be adopted and that resulted in short levy of Central Excise duty - Held that:- The demand confirmed by the impugned order was not sustainable against the Appellants - There was no reason to deny the Cenvat credit for duty paid under Section 35F of Central Excise Act - In this matter the Revenue had not been able to show any loss of revenue or any unjust enrichment or any reasonable ground for denying such credit except that in some other context the Tribunal has observed in some cases that the deposit under Section 35F had a slightly different character than duty normally paid. HARINAGAR SUGAR MILLS LTD. Versus STATE OF BIHAR [2003 (11) TMI 524 - SUPREME COURT OF INDIA ] - The amount deposited had in fact been passed on to the factory which was receiving the goods and the Appellants were not claiming any refund of the deposit made under Section 35F - They were only on the limited point that as per Section 35F they were required to make deposit of duty for hearing of Appeal and what they have deposited was therefore towards duty liability they should be allowed to take credit of such duty paid - Decided in favour of Assessee.
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