TMI Blog2009 (6) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Ltd., seeking waiver of pre-deposit of credit of Rs. 2,57,00 701/-, Rs. 67,684/- and Rs. 4,94,733/- and penalty amounts of Rs. 2,57,00,701/- and Rs. 50,00,000/-. The other Applicants have also filed individual Applications for waiver of individual penalties imposed on each of them. 2. The Ld. Counsel for the Applicants submit that the Company has got bottling plants all over India. The present Appeal relates to 2 bottling plants situated at Wada and Nashik. These bottling plants purchased new glass bottles and plastic crates from manufacturers thereof and availed Cenvat Credit of the duty paid thereon. The filled glass bottles along with crates are removed on payment of duty. At times, depending upon the demand and supply position, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Nashik unit, but credit has been disallowed by the Commissioner. He submits that as the receiver of glass bottles and plastic crates, which are used as inputs, the Wada unit is entitled to take the credit, because the inputs were accompanied by the duty paying documents and duty had actually been paid by Nashik unit. He submits that even if Nashik unit has wrongly paid the duty, it is for the jurisdictional Commissioner at Nashik to raise the objection, but credit cannot be denied to the Applicant at Wada. He also submitted that the whole exercise of paying duly at Nashik and taking credit at Wada is revenue neutral. 3. The Ld. Counsel has cited a number of judgments of revenue neutrality as well as eligibility of receiver of the inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Appeals, required reversal of credit on inputs in respect of which the Cenvat credit was initially availed by the manufacturer and since this condition was not satisfied, the payment by Nashik unit cannot be the duty of excise of which the credit could be availed by the Wada unit. He also submitted that since glass bottles and crates are re-used, it cannot be said that they are removed as such . The Ld. Jt. CDR submits that with the elaborate records and modern computerized system used by the Company, it is possible to identify the empty glass bottles and crates in respect of which the credit was originally availed by the units sending the same to another. On query from the Bench, the Ld. Jt. CDR produced a letter from the Commissioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Company, this issue is pending before the Bangalore Bench in respect of Vishakhapatnam and Nellore Units and before the Mumbai Bench in respect of the Pune unit. Amongst the various orders cited by both sides, our attention was drawn to the order passed by this Tribunal in the Company s own case reported at 2007 (215) E.L.T. 268 in relation to the Pune unit, where the Commissioner had demanded duty and imposed penalty on used empty glass bottles and crates removed by the Pune unit and the Stay Application of the Company was allowed granting unconditional waiver to them. We also leave open the question of jurisdiction on the point whether the receiver of inputs can be denied credit, if the supplier of the same has wrongly paid the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he used empty glass bottles and crates on payment of duty by the other unit at Nashik. The point of as such is answered by the larger Bench decision in Modernova Plastyles Pvt. Ltd. v. Commissioner - 2008 (232) E.L.T. 29, where the Tribunal held that the expression as such covers new/unused or used goods. We are also prima facie satisfied that in view of the two audits, there does rot appear to be suppression or wilful misstatement more so when, 4 Charts annexed to the Appeal of the Company at pages 422 to 425, on which heavy reliance was placed, relating to payment of excise duty on used empty glass bottles and crates by different units of the Company located in Gujarat, Rajasthan, Goa, Madhya Pradesh, etc. have not been refuted or reb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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