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M/s Hindustan Zinc Ltd, Commissioner of Central Excise, Visakhapatnam-I Versus Commissioner of Central Excise, Visakhapatnam-I, M/s Hindustan Zinc Ltd.

2015 (7) TMI 262 - CESTAT BANGALORE

Non Reversal of CENVAT Credit on Closure of factory - allegation that appellants have closed down their Lead plant in July 1999 and dismantled the same in December 2003 and have not reversed the credit of Cenvat availed on lead concentrate lying in stock - Held that:- Lead concentrate was recovered at the time of dismantling of the plant and it cannot be said that the assessee had intention to evade duty or avoid payment of tax and there is no clandestine removal. The appellant's claim is that t .....

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The Rule, as it exists after amendment of 2009, provides for reversal of credit when inputs where cleared 'as such' or written off in the books of account because the inputs became unfit for use. Another provision for recovery of Cenvat credit is available under Rule 14 of Cenvat Credit Rules. This Rule provides for recovery of Cenvat credit wrongly taken or erroneously refunded. The Commissioner (Appeals) has discussed the provisions of Rule 3 relating to reversal and explained that situation i .....

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ee should pay the same with interest - Decided partly in favor of assessee assesssee. - E/872/2009-SM, E/938/2009-SM - Final Order Nos. 20567-20568/2015 - Dated:- 9-3-2015 - B S V Murthy, Member (T),J. For the Appellant : Mr G P Sastry, Adv. For the Respondent : Mr A K Nigam, AR ORDER Per: B S V Murthy: Brief facts of the case are that the appellants are manufacturers of Zinc Ingots and Lead Ingots falling under CSH No. 7901.10 and 7801.10 of the Schedule to the Central Excise Tariff Act, 1985. .....

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29.3.2004. Remaining quantity of 62.922 MT (as per records) along with the quantity of 960 MT of lead concentrate in mixed form retrieved from plant floor lying as work-in-progress were available in stock. Department felt that Cenvat credit availed on this total of 1585.940 MT of lead concentrate is to be reversed as it cannot be further used in the manufacture, as the lead plant is closed. Accordingly, show-cause was issued demanding reversal of Cenvat credit of ₹ 24,66,758/- (after excl .....

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s produced by the appellants in proof of receipt prior to 1994 of the dispatched quantity on 29.3.2004, adjudicating authority decided the case confirming the total demand. This has come up in appeal before the Commissioner (Appeals) and in the Order-in-Appeal No. 30/2007 (V-I) CE dated 21.5.2007, while upholding the demand, reduced the penalty to ₹ 8,96,325/-, equal to the Cenvat attributable to the goods already cleared and rest of the penalty was waived. The Appellants have gone in appe .....

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te cleared on 29.3.2004. The remaining amount of ₹ 14,80,235/- is attributable to the Cenvat credit availed on 1022.922 MT of lead concentrate available in stock. The Commissioner (Appeals) confirmed the demand for ₹ 8,96,325/- taking a view that the appellant could not produce any evidence to show that this quantity of lead concentrate had been received by them prior to 1994. As regards remaining amount, he observed that there is no provision for demanding duty on the quantity lying .....

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evenue is in appeal against dropping of demand of ₹ 14,80,235/- and the assessee is in appeal against the confirmation of demand of ₹ 8,96,325/-. 3. As regards the demand for ₹ 8,96,325/-, learned counsel for the assessee submits that the assessee is not in a position to produce evidence of receipt of lead concentrate prior to the year 1994. He submits that duty has already been paid and requests that penalty may be waived. 4. Learned A.R. submits that duty has not been paid. H .....

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the lead concentrate was received prior to 1994. Subsequently, finding no evidence for the same, they dropped the claim. Having regard to the facts and circumstances of the case, I consider that since the duty liability is not contested and even if it is not paid, learned counsel for the assessee has accepted the liability, the penalty can be waived. 6. Coming to the appeal filed by the Revenue, I find that the provisions in the Rule providing for payment of Cenvat credit availed in case of inpu .....

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mmissioner (Appeals), that inputs have been written off or provisions are made in respect of the inputs. Therefore, I cannot find fault with the conclusion of the Commissioner (Appeals). 7. At this stage, learned A.R. submits that the fact of dismantling of the lead plant is evidence to show that lead concentrate has not been and cannot be used. Once the inputs cannot be used, the manufacturer ceases to be eligible for benefit of Cenvat credit and therefore, the appellants should have reversed t .....

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