TMI Blog2013 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... order was not sustainable against the Appellants - There was no reason to deny the Cenvat credit for duty paid under Section 35F of Central Excise Act - In this matter the Revenue had not been able to show any loss of revenue or any unjust enrichment or any reasonable ground for denying such credit except that in some other context the Tribunal has observed in some cases that the deposit under Section 35F had a slightly different character than duty normally paid. HARINAGAR SUGAR MILLS LTD. Versus STATE OF BIHAR [2003 (11) TMI 524 - SUPREME COURT OF INDIA ] - The amount deposited had in fact been passed on to the factory which was receiving the goods and the Appellants were not claiming any refund of the deposit made under Section 35F - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1975. The appellants claim that such cost sheet was prepared in consultation with the Department and it was decided that the value of the concentrate for the financial year 1996-97 would be based on the figures of the last available 13th cost sheets and duty would be paid by adding 10% profit on the said cost. During the period from 1-8-1999 to 30-6-2000 also the same pattern was followed by the mining unit of the appellants. 3. However, the Department issued three Show Cause Notices for different periods from 1-4-1997 to 30-6-2000 alleging that the cost arrived at was not proper and that a different cost construction method had to be adopted and that resulted in short levy of Central Excise duty amounting to Rs. 7,23,74,887/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal to meet the requirement of Section 35F of the Central Excise Act cannot be considered as deposit of duty and therefore no Cenvat credit can be taken against supplementary invoices showing such deposit. 6. The appellants argue that the credit was taken on the basis of a document received under the provisions of Rule 7(1)(b) of erstwhile Cenvat Credit Rules, 2002. Whatever may be the reason for issuing supplementary invoices by the Zawar Mines unit, the fact remained that the said unit had issued a supplementary invoice under Rule 7(1)(b) of the Cenvat Credit Rules, 2002 and they cannot denied of the said credit at their Dabri factory. The Adjudicating authority did not agree with the contention and confirmed the demand for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no such allegation in the present case. 8. The ld. DR points out that it has been decided by the Tribunal in the case of Suvidhe Ltd. v. Union of India reported in 1996 (82) E.L.T. 177 (Bom.) and in the case of Nelco Limited v. Union of India reported in 2002 (144) E.L.T. 56 (Bom.) and Killick Caribonium v. Union of India reported in 2002 (143) E.L.T. 491 (Bom.) that the deposit made under provisions of Section 35F of Central Excise Act, 1944 is not a payment of duty but it is only a pre-deposit for availing right of Appeal. Therefore, he submits that Cenvat credit can be taken only on deposit of duty and not deposit made under the provisions of Section 35F of the Central Excise Act. 9. The ld. Counsel points out that the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Tribunal vide its order dated 18-8-2008 when the matter was heard last time had made an observation that the decision of Larger Bench of Tribunal in the case of M/s. Bosch Chassis Systems India Ltd. v. CCE, Delhi-III in Excise Appeal No. 855 of 2008 would have a bearing on the outcome of the Appeal and put off decision in the matter. The Larger Bench decision is now reported at 2008 (232) E.L.T. 622 (Tri.-LB) and this aspect should be taken into consideration. 13. We have scrutinised the decision of the Larger Bench in the case of Bosch Chassis Systems (I) Ltd. This is a case where the assessee went to the Settlement Commissioner and paid duty suo motu. The question was whether an application filed before the Settlement Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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