TMI Blog2015 (10) TMI 1931X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants are eligible for modvat credit, the same was not considered by the adjudicating authority. We also find that the appellants reversed the entire ineligible credit on 28.02.2001 through RG23-part-2. We also find that when the duty was confirmed on the final products on account of change of classification, the appellants again paid the duty on 30.03.2004. We find that the appellants initially availed the credit when the final product was exempted but when the department re-classified the product Covered spandex yarn form ch. 5205.90 to ch. 5205.11, the final product becomes chargeable to duty, and the appellants eligible for cenvat credit on the inputs used in the said final product. Once the department demanded duty on the final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers of the Commissionerate, the appellant had reversed the entire credit of R. 21,85,955/- by debiting in their RG 23A Part-2. Therefore SCN dated 08.01.2002 was issued proposing denial of cenvat credit. Parallaly the department also issued another SCN dated 07.01.2002 proposing to re-classify their final product Covered spandex yarn from ch. 5205.90 to ch. 5201.11of CET which is chargeable to duty @ 16%. The SCN pertaining to the classification and demand to duty was confirmed by the adjudicating authority vide order No. 124/2005 dated 23.06 .2003, the Covered spandex yarn was re-classified under ch. 5205.11 and confirmed the demand of ₹ 21,02,638/- along with interest and imposed a penalty of ₹ 25,000/-. The appellant acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was not considered by them. He submits that there were two SCNs issued simultaneously dated 07.1.2002 and 8.1.2002 for demand denial of credit. When the classification issue was decided by the order dated 23.06.2002 the 2nd SCN denying cenvat credit should have been dropped automatically. He relied on the following decisions in support of his contention. 1. Reckitt Bencksier (India) Ltd. Vs. CCE, Bolpur 2002 (147) ELT 616 (Tri.-Kol) 2. Ajay Industrial Corporation Vs. CCE, Meerut 2002 (147) ELT 786 (Tri.-Del.) 3. CCE, Shillong Vs. Sanganariya Woollen Mills (P) Ltd. 2001 (138) ELT 381 (Tri.-Kol.) 4. The Ld. AR on the other hand reiterated the findings in the impugned order and submits that the appellant availed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise in 23.6.2002 whereas the SCN of denial of cenvat credit was decided by the Addl. Commissioner subsequently on 31.03.2003. Though the appellants contended before the adjudicating authority which was recorded at para -20 of the OIO that the final product has been already re-classified under ch. 5205.11 and chargeable to duty and the appellants are eligible for modvat credit, the same was not considered by the adjudicating authority. We also find that the appellants reversed the entire ineligible credit on 28.02.2001 through RG23-part-2. We also find that when the duty was confirmed on the final products on account of change of classification, the appellants again paid the duty on 30.03.2004. We find that the appellants initial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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