TMI Blog2013 (10) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... was, therefore, no reason to reverse any credit or demand of duty for the period December 2004 to November 2005. It was, therefore, essential to provide the basis of short Cenvat reversal calculated by the Revenue. It is further pointed out by the advocate of the appellants that as per submissions dated 20-8-2013 filed by the Department now a credit of ₹ 55,94,675/-, ₹ 18,89,252/- and ₹ 19,77,942/- has been shown to be the balance credit required to be reversed by Appellant Nos. 1, 2 & 3 respectively. - The differences in amount calculations only indicate that the methodology adopted by the Revenue in calculating the reversal of Cenvat credit is not authentic. In the absence of any convincing data to the effect that reversal of Cenvat credit done by the appellants is not proper, it has to be held that reversal of Cenvat credit on pro rata basis was correctly done by Appellant Nos. 1, 2 & 3. So far as appellant No. 4 is concerned, already a credit of ₹ 8,33,578/- has been reversed against an amount of ₹ 6,91,464/- required to be reversed on pro rata basis. The quantum of reversal of Cenvat credit was never questioned by the Revenue. Once appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and textile articles subject to the condition that no Cenvat credit was taken by a manufacturer. Under Notification No. 29/2004-C.E., a concessional rate was prescribed for textiles where Cenvat credit was permissible. Under C.B.E. C. Circular No. 795/28/2004-CX, dated 28-7-2004, it was clarified that simultaneous availment of Notification No. 29/2004-C.E. and Notification No. 30/2004-C.E. was permissible subject to the condition that a manufacturer should maintain separate books of accounts for goods availing the benefit of these notifications. However, appellants were not maintaining separate accounts for the Cenvat credit taken for dyes and chemicals used in the manufacture of dutiable and exempted goods. It was observed by the Revenue during scrutiny of ER-1 returns filed by the appellants that duty payment particulars shown in Table 4 5 of ER-1 did not tally with the duty payment made on fabrics cleared under Notification No. 29/2004-C.E. and on an oral inquiry from the appellants, it was observed by Revenue that the said difference was on account of reversal of Cenvat credit taken on the common inputs used in the manufacture of exempted and dutiable goods. Appellants w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot remanded at any stage and is pending since its filing. 2. Adjudicating authority decided the cases in remand proceedings and again confirmed the show cause notices on the grounds that appellants have not reversed the Cenvat credit properly on pro rata basis. Adjudicating authority based his findings on verification reports given by the jurisdictional Assistant Commissioner. On appeals filed by Appellants 1 to 3, following orders were passed by CESTAT under Order Nos. A/720-722/WZB/AHD/2012 S/858-860/WZB/AHD/2012, dated 21-5-2012 :- 7. The adjudicating authority relies upon the report given by jurisdictional Assistant Commissioner as regards reversal of Cenvat credit made by the appellant on the goods which were cleared after availing the benefit of Notification No. 30/2004-C.E. It is also seen that the appellant has been requesting the adjudicating authority to give a copy of the report of jurisdictional Assistant Commissioner so that they can defend the case before him. It seems that the adjudicating authority has come to a conclusion that the assessee having committed before the Tribunal that they will demonstrate that case before adjudicating authority, has not given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant) appeared on behalf of the appellants. Arguing on behalf of the appellants, Shri Paresh M. Dave (Advocate) emphasized that the issue left in the remand proceedings was only quantification of the alleged short reversal of the Cenvat credit taken with respect to the inputs used in the manufacture of exempted goods. It was his case that the basis on which the short reversal was calculated as mentioned in Assistant Commissioner s reports was not made known to them, in spite of repeatedly asking the adjudicating authority. He relied upon the C.B.E. C. Circular No. 858/16/2007-CX, dated 8-11-2007 clarifying that reversal of credit taken at a later date will amount to as if credit is not taken by the appellants. He also argued that extended period invoked in the present proceedings cannot be pressed into service because the quantum of Cenvat credit reversed, with respect to inputs used in the manufacture of exempted goods, was reflected in the periodical ER-1 returns filed with the Department. That only on the basis of these returns, Revenue found out that credit reversed was more than the duty payable on the dutiable finished goods as clearly mentioned in the show cause notice. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication orders. 6. Heard both sides and perused the case records. These proceedings started in the year 2007 when show cause notices were issued to the appellants that benefit of Notification No. 30/2004-C.E., dated 9-7-2004 is not admissible as this notification applies to the goods in respect of which credit of duty paid on inputs has not been taken. It was also alleged in the show cause notices that appellants did not maintain separate accounts for inputs as per C.B.E. C. Circular No. 795/28/2004-CX, dated 28-7-2004, therefore, pro rata credit reversed by the appellants after the clearance was not correct method of reversal. There was no mention of the improper reversal of Cenvat amounts in the show cause notices. In the first remand order, dated 12-10-2010, this Bench crystallized two issues :- (i) That Commissioner has observed that reversal of credit was not at the time of clearance of exempted goods but at the end of the month and that benefit of exemption cannot be extended to the appellants. (ii) That Commissioner observed in some cases that credit reversed is not equivalent to the duty involved on the inputs used in exempted goods. 6.1 So far as Poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2004 to November 2005 was more than the pro rata credit required to be reversed and calculated by the Revenue. There was, therefore, no reason to reverse any credit or demand of duty for the period December 2004 to November 2005. It was, therefore, essential to provide the basis of short Cenvat reversal calculated by the Revenue. It is further pointed out by the advocate of the appellants that as per submissions dated 20-8-2013 filed by the Department now a credit of ₹ 55,94,675/-, ₹ 18,89,252/- and ₹ 19,77,942/- has been shown to be the balance credit required to be reversed by Appellant Nos. 1, 2 3 respectively. Though, it was not a subject matter of the show cause notices whether the quantum of credit reversed by the appellants was correct or not but by virtue of order dated 12-10-2010, this Bench granted the liberty to quantify the exact credit required to be reversed and whether appellants have reversed such credit correctly in view of the judgments of Gujarat High Court in the case of CCE, Ahmedabad-II v. Maize Products (supra) and CCE v. Ashima Dyecot (supra) which were delivered in the year 2008, when the show cause notices were issued in the year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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