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TMI Blog2011 (6) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... sic Excise Duty (BED) and Special Excise Duty (SED) are also liable for Additional Excise Duty (Textile and Textile Articles), [hereinafter referred to as AED (T&TA)], they took Cenvat credit of the Basic Excise Duty as well as AED (T&TA) paid on the above mentioned inputs. The duty on the finished products - grey fabrics was being paid under Rule 8 of the Central Excise Valuation Rules, 2002 on the basis of 115%/110% of the cost of production. However, since there was no AED (T&TA) duty on the grey fabrics and AED (T&TA) Credit could not be utilized for payment of BED and SED on the final products, the AED (T&TA) Credits remained unutilized. The department was of the view that since the inputs received by the appellant had suffered AED (T& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 4-3-2010 upheld the Order-in-Original passed by the Joint Commissioner and the appeal was rejected. It is against this order of the Commissioner (Appeals) that this appeal along with stay application has been filed. In the stay application, the appellant seek waiver from the requirement of pre-deposit of the duty demand, interest and penalty, which have been upheld by the order of the Commissioner (Appeals). 4. Heard both the sides in respect of stay application. 5. Shri K.K. Anand, Advocate, ld. Counsel for the appellant pleaded that since the Spun Yarn used by the appellant for manufacture of fabrics had suffered, in addition to the Basic Excise Duty, the AED (T&TA) and in terms of the provisions of Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case and hence the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeal. 6. Shri Nitin Anand, ld. Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and emphasized that since there is no AED (T&TA) on the final product of the appellant and there is not even possibility of the utilization the of the AED (T&TA) by the appellant, the AED suffered by the inputs must be treated as part of the cost of the final products, that the judgment of the Hon'ble Supreme Court in the case of C.C.E., Pune v. Dai Ichi Karkaria (supra) is not applicable to this case, that this judgement would be applicable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, AED (T&TA) Credit remained un-utilized, the AED (T&TA) should be included in the cost of final product, as it is very much possible that in future, the AED (T&TA) could be imposed on the final product and at that time, that Credit could be utilized. In terms of the judgement of the Apex Court in the case of C.C.E., Pune v. Dai Ichi Karkaria (supra) for determining the cost of production of the final product, the element of duty on the inputs is not to be included if the input duty credit has been taken. In this case, there is no dispute that the AED (T&TA) Credit has been availed by the appellant. Therefore, just because during the period of dispute, they were not in position to utilize the AED Credit, the AED (T&TA) cannot be included i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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