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2018 (7) TMI 1526 - HC - Central ExciseClandestine removal - CENVAT Credit - countervailing duty paid inputs - Whether the appellant/assessee was entitled to CENVAT credit in respect of the countervailing duty paid inputs? Held that:- The question of granting of benefit of input credit or input tax adjustment towards final tax liability of an assessee has engaged the attention of the Court on many occasions. The context of these disputes have been many fold; in one class of cases, the benefit was claimed for a pre-excise registration period; in the other class of cases, it was when the benefit of exemption notification could not be given to the manufacturer; in yet another category, the issue involved like in the present case, was clandestine removal. In the present case, this Court notices that the Commissioner in fact found that there is a complete identity with respect to Icon Industries (assessee on the one hand and M/s Marvellous Impex, the importer which had procured the PVC resin). The only finding was that M/s Marvellous Impex had imported the goods for use of M/s Hemant Trading (another firm created by the assessee proprietor). That firm did not carry on any activity and appear to be fictitious one. Nevertheless the product in question, PVC resin, was used to manufacture PVC battery separator by the assessee - There is no dispute that the inputs used i.e. PVR resin was by the assessee M/s Icon Industries; in fact, the basic duty liability and penalty have been imposed on the basis of these findings. However, it is equally a matter of record that certain quantity of PVR resin too was used as a raw material. There may be no doubt that with respect to other inputs the assessee did not posses any document. However, that ought not have blinded the authority taking note of material which did exist on record (in the form of the payments made towards CVD) which can be legitimately claimed as input credit by the assessee. The respondent-Central Excise Authorities are directed to proceed to grant such Cenvat credit as is permissible to the appellant/assessee, having regard to the documents which are on record and which may be relevant and can be produced by it for the purpose - appeal allowed - decided in favor of appellant.
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