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2023 (8) TMI 937 - AT - Central ExciseValuation - non-inclusion of transportation charges in the value of final products - wrong availment of Cenvat Credit - inputs removed as such in terms of Rule 3(5) of CENVAT Credit Rules, 2004 - suppression of facts or not - extended period of limitation - HELD THAT:- The issue is no longer res integra inasmuch as the same stands settled in favour of the Appellant by this Tribunal in the case of M/S. ADITYA BIRLA CHEMICALS (INDIA) LIMITED (EARLIER KNOWN AS M/S. BIHAR CAUSTIC & CHEMICALS LIMITED) VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, RANCHI [2021 (1) TMI 709 - CESTAT KOLKATA] where it was held that the contention of the Department to include the freight amount in the assessable value does not meet the test of law and hence not legally sustainable. Thus, the transportation charges are not includable in the assessable value. Accordingly, the demand of central excise duty of Rs.15,22,175/- confirmed in the impugned order on the ground of non-inclusion of transportation charges is not sustainable. Denial of Cenvat credit of Rs.56,84,435/- taken by the Appellant on the CPC received from UHCL, on the ground that it was not an input, we observe that the department has not questioned the duty payment by UHCL on the CPC - HELD THAT:- In the present case, the Appellant has paid much more central excise duty than the CENVAT Credit availed by them on the CPC received from UHCL. Therefore, CENVAT credit availed cannot be denied on the ground that they were not inputs. Even if they were considered as ‘inputs’, Rule 3(5) of CENVAT Credit Rules, 2004 provides that when inputs on which CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs. In the present case, the Appellant has paid much more central excise duty than the CENVAT Credit availed by them on CPC received from UHCL which would be clear from the statement annexed to the compilation. In that event, the Appellant cannot be asked to reverse the CENVAT Credit once again - The credit availed by the Appellant cannot be denied on the ground that it has been entered as finished goods in their RG-1 and hence it is not an input. The demands confirmed in the impugned order are liable to be set aside - Since the demand itself is not sustainable, the question of charging interest or imposing penalty does not arise - Appeal allowed.
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