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2020 (3) TMI 1053 - HC - Central ExciseCENVAT Credit - goods which were finally cleared were exempted - benefit of Rule 6(3) of the Cenvat Credit Rules - Whether the benefit of rule 6(3) of the Cenvat Credit Rules is available to the assessee, irrespective of his conduct and malafide intention to avail cenvat credit on the inputs used in manufacturing of exempted goods? HELD THAT:- There is no dispute raised on the fact that till 20.8.2012, the nature of pipes manufactured was not determined as exempt because GMADA was not granted exemption certificate. The respondents were not maintaining separate books of account. The goods cleared were on payment/adjustment of duty under Rule 6(3) and also dutiable goods albeit in small ratio. The finding recorded by the Tribunal that dutiable goods were cleared on 5.11.2012 has not been challenged - The contentions raised by learned counsel for the appellant are not well founded. Rule 6(2) provides no minimum ratio for the manufacture of exempted and dutiable goods. It deals with manufacturing of exempted and duty chargeable goods and in case of non-maintaining of separate accounts, then Rule 6(3) comes into operation and as per first option the manufacturer is liable to pay 6% of the value of exempted goods. The submission that from September to 4.11.2012, WCL was only manufacturing exempted goods is merely on presumptions and the argument falls flat in view of the finding recorded by the Tribunal that on 5.11.2012 the goods were cleared on payment of duty. Without there being any manufacturing of dutiable goods prior to 4.11.2012, the goods could not have been cleared on 5.11.2012 on payment of duty. More-so, when clearance and supply of dutiable goods is accepted and there is no denial to the fact that a purchase order existed for supply of dutiable goods, on mere assumptions the intention cannot be determined or it can be concluded that the conduct was fraudulent - The authorities have also not appreciated the difference in manufacture and clearance of goods. It cannot be concluded that WCL till 04.11.2012 was indulging only in manufacture of exempted goods. No perversity has been pointed out in the order - Appeal dismissed - decided against appellant.
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