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2015 (10) TMI 1692 - CESTAT CHENNAI

2015 (10) TMI 1692 - CESTAT CHENNAI - TMI - Reversal of input service credit - Credit used for both exempted and dutiable final products under rule 6(3) (b) of CCR - Held that:- Adjudicating authority and the authority to decide the application is happened to be one and the same jurisdictional Commissioner of Central Excise. The adjudicating authority ought to have considered their application before deciding the SCN. On perusal of the application dt. 19.8.2010, appellants have already paid an a .....

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ded to the adjudicating authority. - Impugned order is set aside - Decided in favour fo assessee. - Appeal No. E/S/41017/2014 & E/40773/2014 - Final Order No. 40621/2015 - Dated:- 10-6-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J),JJ. For the Appellant : Mr N Venkataraman, Sr. Adv For the Respondent : Mr B Balamurugan, AC (AR) ORDER Per: R Periasami: As the issue lies on a narrow compass, with the consent of both sides, after dispensing with predeposit, the main appeal itself i .....

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ruary 2008 and also imposed equal penalty under Rule 15 (2) of CCR, 2004. 3. Ld. Senior Counsel representing for the appellant submits that as per para-5.1, pages 9,10 of the OIO, the adjudicating authority in his finding has held that input services in question covered in Annexure I & II to SCN were used by appellants exclusively in relation to manufacture of exempted goods and services utilized in fertilizer plant. Since the adjudicating authority conclusively held that these services are .....

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on. Without considering the application, the adjudicating authority proceeded with SCN and passed the impugned order. They filed the application with the same adjudicating authority and it is stated at para 8.1 of the impugned order that appellants have not obtained an order from the Commissioner on the application. The application is still pending before the very same adjudicating authority who has passed the impugned order. Since they have already reversed the entire credit along with interest .....

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on input service used in both exempted as well as dutiable goods as they have not maintained separate accounts. He also submits that application submitted by appellant was not brought to the knowledge of adjudicating authority. Therefore, he rightly demanded 8% & 10% of the value of exempted goods. He relied on the Hon'ble Bombay High Court's decision in the case of CCE Thane Vs Nicholas Piramal (India) Ltd. - 2009 (244) ELT 321 (Bom.). 5. After hearing both sides, prima facie, we f .....

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the necessary relief claimed in the current proceedings. I find that obtaining of such an order involves a separate line compliance which has not been done by the assessee as of now, for me to consider the same in these proceedings. I also do not find it possible to set-off the amount of ₹ 21,54,969/- claimed to have been paid by the assessee towards the reversal of credit against the demand made in the show cause notice. I must therefore think that, in the absence of such a proof/referen .....

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9;ble Bombay High Court that, in the absence of separate payment of 10% which is mandatory, it cannot be whittled down by reversal of equivalent credit. The above views are also held by the Hon'ble SC in the case of Balarpur Paper Industries Ltd. and/ relied upon by the Hon'ble High Court of Madras in the case of Commissioner of Central Excise, Coimbatore Vs. CESTAT, Chennai. In the light of the above, I am unable to accede to the request of the assessee to consider the amendment of Rule .....

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d's circular No.754/70/2003 dt. 9.10.2003, appellants are not entitled for cenvat credit and they are liable to reverse the entire credit. If the appellants used the input services for both dutiable as well as exempted products as manufactured and cleared Phospho Gypsum on payment of duty, appellants are entitled to reverse proportionate credit as per retrospective amendment to Section 73 w.e.f. 10.9.2004 and they submitted application dt. 19.8.2010 before Commissioner of Central Excise imme .....

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