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2016 (8) TMI 747 - AT - Central ExciseCross utilization of credit wrongly - AED(ST) alongwith interest and penalty - appellant received semi finished fabrics from its sister unit under cover of invoices - duty paid was shown to be 16% basic excise duty but the appellant on its own apportioned it in two parts and 50% was taken as credit under basic excise duty and the remaining 50% was taken as credit under AED (ST) in terms of Notification No. 17/2000-CE dated 01.03.2000. Held that:- it is a fact that the notification was issued on 01.03.2000 and prescribed an aggregate duty of 16% ad valorem and possibly for that reason the invoices issued in the month of March 2000 itself showed the aggregate duty of 16% ad valorem and were stamped with stamp showing apportionment as per the said notification. It has to be taken into consideration that the Notification was issued on 01.03.2000 and was being applied immediately thereafter in the same month when it may still have been in the process of being figured out as to how be depict the aggregate duty @ 16% ad valorem in the excise invoices. One also cannot lose sight of the fact that the appellant did not stand to gain in any way whatsoever by doing such apportionment because it was not as if the BED credit would have lapsed if the entire duty shown in the invoices was taken as BED Credit because it was paying BED in cash to the tune of Crores of rupees after utilizing cenvat credit. Thus, it is not a case where the appellant could have gained any advantage whatsoever by apportioning the duty equally between BED & AED(ST) for taking cenvat credit. In any case, the action of the appellant was in conformity with the legal requirement prescribed under Notification 17/2000-CE. Once credit under AED(ST) of 50% of the duty shown in the invoices is upheld, the demand does not survive and as a consequence nor would interest and penalties. - Decided in favour of appellant*--
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