9911796707
TMI Blog2010 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... to the import of inputs used in the manufacture of exempted products involving duty amount of Rs. 1,14,477.00 during November 2003; (c) Non-payment of duty on the debit notes raised to the customers with respect to the sale of stencils used in the designing & drawing on which Cenvat credit has been availed amounting to Rs. 1,14,286.00 during July 2002; (d) Irregular availment of excess Cenvat credit on two invoices issued by a 100 per cent EOU to the assessee under DTA clearances amounting to Rs. 4,852.00 during March 2003; (e) Irregular availment of Cenvat credit under capital goods on pre-fabricated construction falling under CETH 9406 amounting to Rs. 7,445.00 during July 2002; (f) Excess availment of Cenvat credit on an invoice than what was actually eligible amounting to Rs. 526.00 during March 2003; (g) Non-payment of Interest amounting to Rs. 1,54,798.00 (for the period from June 2003 to September 2003) on the credit on Rs. 1,50,31,300.00 reversed voluntarily in September 2003 on the inputs meant for the manufacture of non-dutiable products after the same became exempted in June 2003 itself vide Notification No. 55/2003-CE, dated 24-6-2003; (h) Irregular availment of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sify the goods originating from a manufacturer subject to jurisdiction of different Central Excise officers who had classified the same. In support of this submission, the appellants relied on the following case laws :- (i) Prem Cables (P.) Ltd. v. CCE 2001 (127) ELT 400 (Trib. - Delhi) (ii) CCE v. Bihar Caustic & Chemicals Ltd. 2000 (118) ELT 196 (Trib. - Cal.) (iii) CCE v. Gontermann Peipers (India) Ltd. 2005 (186) ELT 422 (Trib. - Delhi) (iv) Sakumbari Sugar & Allied Indus. Ltd. v. CCE 2006 (205) ELT 1087 (Trib. - Delhi) It is argued that the rules provided for the manufacturer to avail Cenvat credit of duty paid on the goods received by it on the strength of Excise invoices issued by the manufacturer which bore the assessment of the goods. The assessee has also tried to justify the classification under Chapter Heading 8537 of the impugned Aluminium tables on the basis of the classification adopted in the relevant Excise invoices. 4. As regards the penalty of Rs. 6,00,000 imposed on them, the appellants have contested their liability to penalty imposed under Rule 13 of the CCR read with section 11AC of the Act on the ground that these provisions applied only in a case wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law empowered such imposition. One of the relied upon judgments is Hindustan Steel Ltd. v. State of Orissa 1978 ELT J159 (SC). 5. They had reversed the impugned credit before issue of show-cause notice. In the judgment of the Apex Court in the case of Commissioner v. Rashtriya Ispat Nigam Ltd. 2004 (163) ELT A53 the Apex Court had upheld the decision of the Tribunal in the case of Rashtriya Ispat Nigam Ltd. v. CCE 2003 (161) ELT 285 (Trib. - Bang,) where the Tribunal had vacated the penalty imposed on the appellants considering the fact that it had deposited the duty due to the department prior to issue of show-cause notice. 5.1 During the material period, all through, the appellants had sufficient Cenvat credit in their account. Therefore, there could not have been any intention in taking undue credit as found in the impugned order. 6. The assessee challenged the demand of interest on the ground that the impugned credit had not been utilized by them, there was sufficient balance in their Cenvat credit account all along. In support of the claim that in the circumstances no interest is leviable on them, they relied on the following judicial authorities :- (i) Gupta Steel v. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er res integra. In the various case laws relied on by the appellants, the Tribunal had held that the classification of the goods cannot be changed at the receiver's end by the Central Excise authority. In view of this settled position, we vacate the order of the Commissioner as regards the denial of capital goods credit to the extent of Rs. 1,52,440 on Aluminium tables ordered in the impugned order. (ii) The next issue relates to the appellants liability to interest for delay in reversing the inadmissible Cenvat credit. We find that the consistent claim of the assessee is that they had not utilized the impugned credit and there was sufficient balance in their Cenvat credit account at all times. Therefore, liability to interest did not arise. We find that in Ind-Swift Laboratories Ltd.'s case (supra) cited by the appellants, their Lordships of the High Court of Punjab & Haryana had held as follows :- "11. Reliance of respondents on Rule 14 of the Credit Rules that interest under section 11AB of the Act is payable even if CENVAT credit has been taken. In our view, said clause has to be read down to mean that where CENVAT credit has been taken and utilized wrongly, interest should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
