TMI Blog2013 (11) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it is not necessary that cenvat credit should be reversed before the clearance of the goods - Extended period has been made applicable in the present proceedings when the fact of reversal of cenvat credit was reflected in their periodical ER-1 returns filed with the Department - Once the fact of reversal of cenvat credit is indicated in their periodical returns, then it cannot be held that there was any misstatement or suppression with intention to evade Central Excise duty and accordingly extended period cannot be made applicable. Prima facie the department has no basis whatsoever to indicate that appellants have less reversed the cenvat credit with respect to inputs as per the provisions of notification No. 30/2004-CE read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarified by CBEC under circular No. 795/28/2004-CX. dated 28.07.2004 that manufacturers can avail simultaneously the benefit of notification No.29/2004-C.E. and 30/2004-C.E. subject to the condition that separate books of accounts are maintained by the manufacturers for the goods while availing both the notification simultaneously. Appellants did not maintain any separate records for the dyes and chemicals used in the manufacture of the processed finished dutiable and exempted goods. 3. It was argued by Sh. P.M. Dave, Advocate on behalf of the appellants that they were in a position to calculate the quantity of dyes and chemicals only after the processed fabrics were exported and the total cenvat credit availed with respect to the input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case back to the Adjudicating Authority as per para 7 and 8 of the order reproduced below. para 7. On the above counts, the learned advocate submits that subsequent reversal of the credit stand upheld by Hon ble High Court of Gujarat in the case of CCE Vs. Ashima Dyecot Ltd. 2008 (232) ELT 580 (Guj.) and in the case of CCE Ahmedabad Vs. Maize Products 20085 (89) RLT 211 (Guj.). In the later case, reversal of credit even at the appeal stage has been held in accordance with law. As regards quantum of reversal, he submits that the appellants are in a position to demonstrate before Commissioner that the quantum of credit reversed by them was equivalent to the credit taken by them on the said input. Para 8. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department. Appellants kept on requesting for the basis of calculation of short reversal worked out by department but Adjudicating Authority after giving them personal hearing again confirmed the full demand against which the appellants have filed the present appeals. 6. Shri P.M. Dave, Advocate appearing on behalf of all the appellants, after narrating the facts leading to the present stay applications, argued that they have correctly worked out the cenvat credit pertaining to the exempted goods and the same has been reflected in their ER-1 returns. He emphasized that department is not able to give any records on the basis of which it can be said that there is a short reversal of cenvat credit. It was argued that in the show-cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification No. 30/2004-CE read with CBEC circular dated 28.07.2004. This reversal was periodically done by the appellants and these facts are reflected in their ER-1 returns filed with the department from time to time. It is observed from the show cause notices issued to the appellants that there is no allegation regarding short reversal of cenvat credit. In the letters issued to the appellants it is not specified as to what is the basis of short payment of cenvat credit calculated by the department. It is also observed from running page 66 of the adjudication order dated 22.02.2013 passed by the Adjudicating Authority in the case of Omkar Textile Mills Ltd. that as late as December-2012, department was asking the appellants to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
