Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2012 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (7) TMI 825 - AT - Central ExciseDenial of CENVAT Credit - Difference in the quantity of the imported goods as per the Ullage report and storage tank outturn reports - Whether the Modvat Credit is available to the assessee on the quantity of HFO short received in the factory and the same not used in the manufacture of final product and also the assessee was liable for penalty under Section 11AC of the Central Excise Act, 1944 for the excess availment of Modvat/Cenvat Credit during the period after 1-4-2000 - Held that:- there is no diversion of the goods covered under the invoices in question and entire goods received under consignment has not been put to any use other than as input in the end product manufactured by the assessee and the transit loss was found by the Tribunal to be normal loss due to evaporation, it must be held that the CVD paid by the consigner/importer was paid in respect of the goods entire used by the assessee as inputs in the manufacturer of end product. Moreover, Rule 57(9) envisages that such amount of Modvat credit availed by the assessee, which is evidenced by the invoices, has inherent co-relation with the payment of duty with goods covered by such invoices. Where the CVD, Customs or Excise duty on the inputs received by the assessee in the factory and used by him in manufacturing of end product has correlation with the evidence of the payment about the duty on the entire goods received and used in the factory, no curtailment of Modvat credit as evidenced by the invoices is permissible. The mode of proof of quantity and payment of duty on inputs received and used as input is by producing the invoices. Unless the invoices are found to be wrong or diversion of inputs received under invoices to any other use is found, there is no provisions to avail lesser Modvat credit than what has been proved to have been paid on the entire goods received and used in factory of manufacturer - there is no allegation that the imported raw material has been diverted. In these circumstances, respectfully following the above decision of the Hon’ble Rajasthan High Court Union of India v. Bhilwara Spinning Ltd. [2005 (8) TMI 30 - HIGH COURT RAJASTHAN AT JODHPUR] - Decided against Revenue.
|