9911796707
TMI Blog2014 (6) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... re of paper falling under Chapter 48 of the Central Excise Tariff Act, whereas the second appellant M/s. Chandpur Enterprises Ltd. (Steel division) is engaged in the manufacture of MS ingots falling under Chapter 72. 3. The paper division, prior to 1.4.08 was availing the benefit of Cenvat credit of duty and was paying the excise duty on their final product . However, with effect from 1.4.2008, they opted for notification No. 4 /08 dated 1.3. 08 which granted exemption to their final product. In terms of transitional provision of Rule 11(2) of Central Excise Credit Rules, 2004, a manufacturer who opts for exemption from the whole of the duty of excise leviable on goods manufactured by him under a notification based on the value or quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was paid in the month of March, 2008. Such duty was discharged by them in June, 2008, by utilizing lapsed credit to the extent of Rs.4,98,260/-. While issuing the invoices, showing the sale of 121.240 MT of ferrous waste and scrap, the appellant used new series of invoices without the permission of Revenue. It may not be out of place to mention here that the said clearances of waste and scrap, as claimed by the appellants having been made in March, 2008, was never reflected in ER 1 return filed for the month of March, 2008. 5. Revenue by entertaining a view that the credit having been lapsed on 1.4.08, was not available to the appellant for payment of duty in the month of June, 2008, initiated proceedings against the paper division by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t lapsed as on 31.3.08, in terms of provisions of Rule 11 (2) of Central Excise Rules,. The appellants contention is that inasmuch as the duty liability arose in the month of March, 2008 itself and if they would have paid the same at the time of raising the invoices they were in a position to utilize the said credit. The duty could not be paid in the month of March, 2008, inadvertently and as such, the credit should be allowed to be utilized for payment of duty subsequently in the month of June 2008. I find that the Revenues contention is that credit having been lapsed, was no more available to the assessee for utilization. Revenue has also expressed doubt about the fact that waste and scrap in question was cleared in March, 2008, inasmuc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already lapsed as on 1.4.08, can be used for payment of duty in the month of June, 2008, even in respect of clearance effected prior to 1.4.2008. The appellants sole ground is that clearance of waste and scrap were effected in March, 2008, when the credit was still available to them for utilization. And the mere fact they did not actually paid the duty in March, cannot act as an obstacle or hindrance to their use of credit. Even if, it is held that clearance of ferrous waste and scrap were actually made in the month of March, 2008, though there are doubts about the same, still the credit which has already lapsed, would not be available to them for utilization. If the appellants would have paid the duty in the month of March itself, admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of default, the Cenvat credit would not be available to the said assessee for utilization and for payment of outstanding amount. As such, even in terms of said Rules, the appellants is debarred from discharging its duty liability by utilizing the Cenvat credit. 11. In view of foregoing discussion, I find no merits in the appeal of paper division, and direct them to discharge their duty liability in cash along with interest. As regards the penalty, I find that though the revenue has expressed doubts about the actual clearance of the goods in the month of March, 2008 but it does not stand conclusively held by the lower authorities that the clearance were actually made in June, 2008 and the credit was utilized with a malafide intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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