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2015 (12) TMI 1004 - AT - Central ExciseDemand of equal amount of credit availed on the duty paid goods returned under Rule 16 (2) o Central Excise Rules - Denial of refund claim - Held that:- There is no dispute on the facts that certain quantities of finished goods were rejected and returned by the customers for various reasons and the cenvat credit of duty paid was taken by the appellants under Rule 16(1) and subsequently the rejected goods were sold in auction as such and cleared on payment of duty on the transaction value in terms of second leg of sub-rule (2) of Rule 16. - Whereas, the assessees contended that they have correctly paid the excise duty while removing the said goods and stated that they are covered under the second part of sub-rule (2) of Rule 16 under the term used “any other case” stated in the said sub-rule. We find that both sides sought to interpret the provisions of Rule 16 in their own way. The period of dispute is from 01.07.2001 to 30.06.2005 in the assessee s appeal and from July, 2007 to March, 2010 in the Revenue s appeals. It is established beyond doubt that no process has been carried out on the returned goods. Therefore, on the question of whether first part of sub-rule or the second part of sub-rule of Rule 16 is applicable, we find on the very same issue has been dealt in detail by the Tribunal’s co-ordinate Bench, Mumbai in the case of M/s. Apollo Tyres Ltd. Vs. CCE, Pune-II (2010 (2) TMI 846 - CESTAT, MUMBAI) allowed the appeal. - issues are identical and the duty paid goods are rejected and returned to the factory of the assessee and without doing any processes the said goods were sold by auction to third party “as is where is basis” and cleared on payment of excise duty on the transaction value as per Section 4 of the Central Excise Act. - appellants are not liable to pay the amount equal to cenvat availed on the returned goods. Accordingly, the demand is set aside in the assessee s appeal. Consequently, they are not liable for any penalty and the same is also set aside. - Decided in favour of assessee.
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