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TMI Blog2013 (11) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 was disallowed to the appellant and a penalty of Rs. 10,000/- was also imposed upon the appellant. During the course of personal hearing, held by Commissioner (Appeals) appellant was called upon to produce invoices under which credit was taken. Thereafter, a show cause notice was issued to the appellant on 16.11.2006 by Commissioner (Appeals) and under the impugned order in appeal dated 02.1.2007, Commissioner (Appeals) disallowed higher deemed cenvat credit of Rs. 29,85,059/- and enhanced the penalty from Rs. 10,000/- to Rs. 10 Lakh. 2. Shri Kuntal Parikh (Advocate) appearing on behalf of the appellant argued that appellant was entitled to the cenvat credit as per Sr. No. 1(c) of the table annexed to Notification No. 35/2003-CE (NT) dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003? 5. So far as point mentioned in Para 4 (i) is concerned it will be relevant to first see the provisions contained in Section 35 of the Central Excise Act, 1944:- Section 35, Appeals to Commissioner (Appeals) (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against: Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued for an amount of Rs. 20,55,276/- and extended period was not invoked. In the show cause notice dated 16.11.2006 issued by Commissioner (Appeals) demand has been proposed to be enhanced but extended period of five years has not been invoked by Commissioner (Appeals) nor penalty under Section 11AC of the Central Excise Act has been invoked. Therefore, as per the judgment of Hon'ble Supreme Court in the case of Collector of Central Excise, Pune vs. Maharashtra Scooters Limited [1997 (17) RLT 697 (SC.)], the show cause notice dated 16.11.2006 issued by Commissioner (Appeals) cannot be sustained as neither proviso to Section 11A regarding extended period has been invoked nor provisons of Section 11AC of the Central Excise Act, 1944 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon by the appellant. It is accordingly held that there is no requirement under the provisions of Rule 9A of the Cenvat Credit Rules, 2003, as amended from time to time, for filing only one declaration. 8. The last point raised in Para- 4(iii) above required to be decided is whether appellant was entitled to a credit on grey textile fabric as per the provisions contained in Srl. No.2 or Sr. No.1(c) of the table annexed to Notification No. 35/2003-CE (NT) dated 10.04.2003. Both these serial numbers, as given in the table annexed to Notification No. 35/2003-CE (NT) dated 10.04.2003, are reproduced below:- TABLE S. No. Description Amount of credit (1) (2) (3) 1 Input lying in stock or in process, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 upon making a written declaration of the description, quantity and value of the stock of inputs (whether lying in stock or in process or contained in finished products lying in stock) and subject to availability of the document evidencing actual payment of duty thereon. 8.2 It is evident from the provisions of Rule 9A (1) that a first stage dealer or a second stage dealer is entitled to the service tax credit equal to the duty credit on inputs contained in the finished goods. This Rule talks only of dealers of yarn and unprocessed fabrics, therefore, the word finished goods used in the Rule for dealers will only mean 'Yarn' and or Unprocessed fabrics. For the present appellant of unprocessed fabric the input on which credit is admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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