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TMI Blog2013 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... d the smelters are all owned by the Appellants. The Appellants submitted that entire quantity of concentrate obtained from the mines (except the quantity which is exported out of India) is transferred to the smelters of the Appellants. So they point out that the duty paid by the company on the clearances made from the unit manufacturing concentrates to units smelting concentrates is available as Cenvat credit at the smelting unit. 2. When Excise duty was imposed with effect from 23-7-1996 on concentrates, the Appellants started paying duty on the concentrates based on cost construction method as prescribed under Rule 6(b)(ii) of Central Excise (Valuation) Rules, 1975. The appellants claim that such cost sheet was prepared in consultation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to differential duty on concentrates sent to zinc smelter unit at Dabri. Supplementary invoice No. 2280 dated 31-12-2003 was issued in favour of the smelter unit of the appellants at Dabri and that factory took credit of the said amount. 5. The appellants were issued with a Show Cause Notice dated 29-11-2004 asking them to show cause as to why Cenvat credit of Rs. 80,60,820/- availed by the appellants should not be disallowed to them and equal penalty imposed on them on the ground that such Cenvat credit taken against supplementary invoices was wrongly availed. The contention of the Department was that the deposit made in pursuance of an order of the Tribunal to meet the requirement of Section 35F of the Central Excise Act cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing unjust enrichment. Quite often such deposits are made from the assessee's own resources after clearance of the goods and the same is not passed on to the buyer of the goods. The observation made by the Tribunal in such a context cannot be relied upon to argue that the pre-deposit of duty made under Section 35F of the Central Excise Act is not duty at all. They further submit that provisions under Rule 7(1)(b) of the Cenvat Credit Rules, 2002 for taking credit on the basis of supplementary invoice prohibits such credit only if the supplementary payment has arisen in a situation involving mis-declaration, fraud or suppression by the assessee and there is no such allegation in the present case. 8. The ld. DR points out that it has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not passed on to the buyer of the goods. In this case, the amount deposited has in fact been passed on to the factory which was receiving the goods and the Appellants are not claiming any refund of the deposit made under Section 35F. They are only on the limited point that as per Section 35F they were required to make deposit of duty for hearing of Appeal and what they have deposited is therefore towards duty liability they should be allowed to take credit of such duty paid. The decision of the Hon'ble Supreme Court in the case of Harinagar Sugar Mills Ltd. (supra) is more appropriate to the situation in hand. 12. The ld. DR points out that the Tribunal vide its order dated 18-8-2008 when the matter was heard last time had made an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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