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2022 (9) TMI 1282 - AT - Central ExciseCENVAT Credit - input services have been used in or in relation to the manufacture of the said dutiable final products as well as exempted goods - non-maintenance of separate records - period from July, 2010 to March, 2014 - requirement to pay an amount equal to 5% (effective up to 16.03.2012) and 6% (w.e.f.17.03.2012) of the value of exempted goods or not - HELD THAT:- This Tribunal in the case of M/S PHILIPS CARBON BLACK LTD., M/S PROMODE KUMBHAKAR VERSUS CCEX & SERVICE TAX, DURGAPUR AND CGST & EXCISE, BOLPUR VERSUS M/S PHILIPS CARBON BLACK LTD. [2020 (1) TMI 530 - CESTAT KOLKATA] had held that non-compliance of the procedure prescribed under Rule 6(3A) of the Cenvat Credit Rules, 2004 does not result in loss of substantive right of the assessee to avail the option of reversing proportional credit and such non-compliance is at best a procedural lapse, which can be condoned. Further, Hon’ble Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT] has held that reversal of credit along with interest amounts to a situation, which is akin to as if the assessee had never availed such credit at the first place. Also, Hon’ble Calcutta High Court in the case of COMMISSIONER OF SERVICE TAX-1, KOLKATA VERSUS M/S. SURYA VISTACOM PRIVATE LIMITED [2022 (7) TMI 719 - CALCUTTA HIGH COURT] has held that if according to the adjudicating authority, the assesse did not abide by the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004, it was open to such adjudicating authority to reject the assessee’s claim as regards the disputed Cenvat Credit and it could not mechanically invoke the 6% Rule on the assesse. The demand cannot sustain and is accordingly set aside - appeal allowed - decided in favor of appellant.
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