TMI Blog2015 (9) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... n the exact procedure that the manufacturer can export goods under bond without payment of duty. This is a facility that is available to the manufacturer under the excise procedure and in such case appropriate duty on goods i.e. payable is nil, therefore, there is no bar for the manufacturer to remove inputs or capital goods for exports undergone. It is further seen that as per the CBEC Circular 283/117/96-CX dated 31.12.1996 it has clarified that MODVAT credit in RG 23A part 2 account against the export of inputs as such under bond can be utilized in the same manner as it is utilized for final product under the proviso of Rule 57(F)(4). Therefore, it falls from that such input should be allowed to be exported under bond without any reversal of credit. Admittedly, in this case as per the Revenue, the appellant has exported the inputs as such. Therefore, as per the CBEC Circular cited here in above, the appellant is entitled to avail Cenvat Credit thereon. Therefore, the question of reversal of the same does not arise. With these terms, the demand on this account is set aside. Definitely the appellant is required to pay duty on captively processed goods which are liable for duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nules to manufacture polythene films which in turn, was used for manufacture of laminated polyester films on which they were paying duty and consequently intermediate product held to be exempted in terms of notification no. 67/95. Consequent to the decision of the Hon'ble Apex Court, the final product was not dutiable, therefore, the appellant is required to pay a sum of ₹ 75,80,380/- towards duty on the said polyester and polythene film. The appellant exported certain consignment of metalized film and since such export contain polyester polythene films which were intermediate product on which no duty was paid. Therefore, appellant is required to pay a sum of ₹ 15,68,167/-. It was also found that certain inputs have been clandestinely removed, therefore, appellant is required to pay duty toward them i.e. on laminated film duty of ₹ 14,70,682/- and credit was denied on laminated rolls and metalized polythene film of duty of ₹ 3,90,734/-, Various show cause notices were issued to the appellant. Adjudication took place and demand of ₹ 8,45,11,283/-was confirmed on account of utilizing of metalized polyester film and laminated film on which duty has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured and captively consumed, it is the submission of the Ld. Counsel that the appellant has paid duty on the final product. Therefore, the same amounts to payment of duty on polythene films and captively consumed. For the demand of ₹ 14,70,682/- and ₹ 3,90,784/- the Ld. Counsel for the appellants drew our attention to the impugned order wherein the Ld. Commissioner has observed that the inputs have been procured clandestinely and same has been cleared clandestinely. If that is so, the inputs has been procured clandestinely question of availment of credit does not arise, consequently, the question of reversal of Cenvat Credit also does not arise. He also submits that the demand pertains to this account is for the period 25.03.2003 to 12.08.2004 whereas the search was conducted in the premises of the appellant on 13.08.2004 and this fact were known to the department. Thereafter, a show cause notice was issued on 10.02.2005 for the said period. Further, also another investigation was conducted on 16.10.2005 for which show cause notice was issued on 11.08.2005 and further a search took place on 19.11.2007 and thereafter, a show cause notice dated 30.11.2007 was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with due interest thereon under section 11AB ibid and whether M/s. LIPL is liable to pay penalty in this regard under Section 11AC ibid. v. Whether Cenvat Credit amounting to ₹ 3,90,734/- involved in the processed goods viz. laminates in rolls (PLP in rolls) and Metalized polyester film cleared clandestinely is demandable from M/s. LIPL under Rule 14 of Cenvat Credit Rules 2004 read with Section 11A(i) ibid alongwith due interest thereon under section 11AB ibid and whether M/s. LIPL is liable to pay penalty in this regard in terms of Section 11AC ibid. vi. Whether penalty under rule 13/15 of Cenvat Credit rules 2002 and under Rule 25 of the Central Excise Rules 2002 read with section 11AC of the Central Excise Act 1944 is imposable upon M/s. LIPL for contravention of various provisions of Central Excise Act, and; vii. Whether penalty under rule 13/15 of the Cenvat Credit Rules 2004 and Rule 26 of the Central Excise Rules 2002 is imposable on Shri Lok Nath Prasad, the Director of M/s. LIPL, Shri Om Prakash Gupta, the Director of M/s. LIPL and Shri Dipankar Ghosh, Manager and Authorized signatory of M/s. LIPL, separately. 8. We are dealing with each issue sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the appellant is not liable to pay duty. Therefore, the provisions of section 11D of the Act are not applicable to the facts of this case. Although the appellant has paid to the Central Government what amount is collected from the customers as duty, therefore, the demand under section 11D of the Act is not sustainable. Consequently, interest is also not payable. ii. Now we come to the second issue where demand on Cenvat Credit on the input used in metalized polyester film cleared for export has been confirmed. As per the CBEC Circular No. 345/2/2000 TRU dated 29.08.2000 which explains that in the exact procedure that the manufacturer can export goods under bond without payment of duty. This is a facility that is available to the manufacturer under the excise procedure and in such case appropriate duty on goods i.e. payable is nil, therefore, there is no bar for the manufacturer to remove inputs or capital goods for exports undergone. It is further seen that as per the CBEC Circular 283/117/96-CX dated 31.12.1996 it has clarified that MODVAT credit in RG 23A part 2 account against the export of inputs as such under bond can be utilized in the same manner as it is utiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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