TMI Blog2011 (7) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitled to utilize the credit attributable for the month of September, 2003 - Decided against the assessee Commissioner (Appeals) has discussed in the impugned order in detail that the claim of the appellants is not sustainable that they have received the goods on 30.09.2003 in their factory as they failed to produce any documentary evidence to support their claim - Held that: the credit of Rs.81,810/- is available to the appellants for payment of duty for the month of September, 2003. Therefore the appellants can utilise this credit of Rs.81,810/- for payment of Rs.20,329 - Decided in favor of the assessee - E/2741 of 2010-SM - - - Dated:- 18-7-2011 - Mr.Ashok Jindal, J. Present for the Appellant : Shri S.C.Kamra,, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt attributable to them for the month of October, 2003. Therefore, the show cause notice was issued to the appellants for contravention of Rule 3(3) of Cenvat Credit Rules, 2002 read with Rule 12 of Cenvat Credit Rules, 2002. There was also proposal for imposition of penalty under Rule 13 of Cenvat Credit Rules, 2002. The adjudicating authority confirmed the demand and imposed penalty of Rs.50,000/- on the appellants. On appeal, before the Commissioner (Appeals), the Commissioner (Appeals) confirmed the demand but dropped the penalty. Against the confirmation of demand, the appellants are in appeal before this Tribunal. The Revenue has not filed any appeal for dropping of penalty against the appellants. 3. Learned Advocate appeared on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 2003 (151) ELT 154. In alternate plea, he further submitted that if payment made by them for the month August, 2003 by utilizing the credit attributable to them for the month of September, 2003 is denied in this case the credit of Rs.81,810/- is available in their cenvat credit account for the month of September, 2003 from which the payment of Rs.20,329/- can be adjusted. Therefore, the demand of Rs.20,329/- is not sustainable at all in the facts of the present case. 4. On the other hand, Shri S.K.Bhaskar, SDR appeared on behalf of the Revenue and submitted that as per provisions of law no credit is available to the appellants for defaulting period. In this case, it is admitted fact on records that on 31.08.2003, no credit of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utable for the month of September, 2003. I am not convinced with the arguments advanced by the learned Advocate that they have not discharged duty liability under the provisions of Rule 8(1) ibid, therefore, they are out of the provisions of Rule 3(3) ibid. Therefore, the demand for the month of August, 2003 of Rs.81,810/- is confirmed against the appellants. 7. Now coming to second demand, the Commissioner (Appeals) has discussed in the impugned order in detail that the claim of the appellants is not sustainable that they have received the goods on 30.09.2003 in their factory as they failed to produce any documentary evidence to support their claim. Moreover, the goods have been transported from Madhya Pradesh on 30.09.2003 at 12 noon wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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