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TMI Blog2015 (10) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... n payment of duty. However, during the period from August 2001 to February 2002 some of the transformers were returned by their customers for repairs, but the return of the transformers was not under the original invoices. The appellant, however, took Cenvat credit of Rs. 5,31,031/- under Rule 16 of Central Excise Rules in respect of these transformers on the basis of triplicate copy of the invoice available with them, as according to them each transformer could be linked to the invoice under which it had been cleared on the basis of its CT number embossed on it. One objection of the department is that this availment of credit of Rs. 5,31,031/- under Rule 16, in respect of the transformers returned without the original invoices under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the department does not dispute the return of defective transformers for repairs, that the only objection of the department is that in absence of original copies of the invoices under which the goods had been cleared, the Cenvat credit cannot be availed by the appellant, that this plea is incorrect, as though the transformers had not been returned under original invoices, but had been returned under challans, the transformers returned could be linked to the triplicate copies of the invoices on the basis of CT number, that the appellants, therefore, have correctly taken the Cenvat credit on the basis of triplicate copies, that in this regard he relies upon the Mysore Commissionerate's Trade notice No. 21/2004 dated 11/05/2004 and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing of the appeals and recovery thereof may be stayed till the disposal of the appeals. 4. Shri R.K. Mishra, the learned DR opposed the stay applications by reiterating the findings of the Commissioner (Appeals) and pleaded that as regards the availment of Cenvat credit in respect of the transformers returned for repair, the appellant were not in a position to produce even the duplicate or triplicate copies bearing the CT numbers and hence the Cenvat credit of Rs. 5,31,031/- has been correctly denied, that as regards the duty demand of Rs. 3,92,578/-, since the activity of repair of transformer amounts to manufacture, the duty has to be paid on all the parts whether Cenvat credit availed or not non-Cenvat credit availed and hence this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repaired goods. Moreover, no credit was taken of the ports used in repair. Therefore, the credit can't be denied. In these circumstances, I hold that the appellant has correctly taken the credit. 7. As regards the duty demand of Rs. 3,92,578/-, the basis of this demand, as mentioned in the show cause notice is reproduced below:- Scrutiny of the sale figures of non-excisable goods for the year 2001-2002 has revealed that the said party cleared these goods of a value of Rs. 59,57,159/-, whereas they have shown in their records the value of these goods as Rs. 84,11,772/-. Thus there appears a difference of Rs. 24,54,613/- as per details given in Annexure D. On being asked the said party could not produce the relevant records like ER-1 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parts having been sold are reflected in the balance sheet. I find that no finding has been given by the Commissioner (Appeals) on this plea and he has simply confirmed the demand stating that the repair activity being excisable, the duty should have been paid on this amount also, while this is not the allegation in the show cause notice. Moreover in any case, the finding that repair of transformers amounts to manufacture is totally wrong finding in respect of clearance of repaired transformers no duty can be demanded, only Cenvat credit on cenvated parts used in repairs is required to be reversed. In view of this, I hold that the duty demand of Rs. 3,92,578/- is not sustainable. 8. In view of the above discussion and taking into account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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