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2015 (12) TMI 251 - CESTAT NEW DELHI

2015 (12) TMI 251 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - period of limitation - relevant date - Availment of CENVAT Credit - SSI exemption under notification no. 8/03-CE - Held that:- As per the provisions of Rule 11(2) of the Cenvat Credit Rules, 2004, when a manufacturer opts for exemption from the whole of duty of excise leviable on the goods manufactured by him, under a notification based on value or quantity of clearances in a financial year and who has been taking cenvat credit .....

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yment of duty on any excisable goods whether cleared for home consumption or for export. - appellant do not have prima facie case in their favour.

In terms of section 11A(3)(ii) the relevant date in case of excisable goods on which duty of excise has not been levied or paid, short levied or short paid, where under the Rules made under this Act, a periodical return showing particulars of duty paid on excisable goods during period to which the said return relates is to be filed by a man .....

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8.2007 which would have to be treated as the relevant date. - judgment of Delhi High Court in the case of Super Tyres (P) Ltd. vs UOI (2005 (1) TMI 119 - HIGH COURT OF DELHI) is not applicable to the facts of this case. We are, therefore, of the prima facie view that this is not a case for total waiver - Partial stay granted. - Excise Stay No. E/51578/2014 & Excise Appeal No. E/51339/2014 -Ex[DB] - STAY ORDER NO 51287 /2015-Ex(Br) - Dated:- 6-4-2015 - Mr. Rakesh Kumar, Member (Technical) And Mr. .....

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Rules, 2004. On 31.03.2007 they opted for the SSI exemption under notification no. 8/03-CE and one of the conditions for availing of this exemption is that during the period when the nil rate of duty is availed, no Input duty cenvat credit would be availed. 1.2 As per the provisions of Sub Rule 2 of Rule 11, a manufacturer who opts for exemption from whole of the duty of excise leviable on the goods manufactured by him under a notification based on value or quantity or clearances in a financial .....

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d shall not be allowed to be unitized for payment of duty on any excisable goods, whether cleared for home consumption or for export. 1.3 At the time of opting for SSI exemption i.e. on 31.03.2007, the total cenvat credit involved on the inputs lying in stock, inputs in process and inputs contained in the final product lying in stock was ₹ 28,53,077/- out of which the cenvat credit on the inputs lying in stock was ₹ 11,53,089/-. Subsequently, in course of scrutiny of the ER-1 return .....

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penalty of equal amount on them under Rule 15 of the Cenvat credit Rules 2004. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (appeals) directed certain pre-deposit for hearing the appeal for compliance with the provisions of section 35F and since the appellant could not comply with the Commissioner (Appeals) stay order, their appeal was dismissed for non-compliance with the provisions of section 35F. 1.4 The appellant thereafter filed an appeal to Tribunal .....

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eals has been filed along with stay application. 2. Heard both the sides. 3. Sh. Sudhir Malhotra, advocate, the Ld. Counsel for the appellant, pleaded that though, the appellant had given the option for availing the SSI exemption under notification no. 08/03-CE w.e.f. 01.04.2007, during period from 01.04.2007 to 18.07.2007 there were only export clearances and as such there were no clearances for home consumption, that first clearances for home consumption was made only on 19.07.2007, that in vi .....

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second para of the SCN, it is clear that the non-reversal of the cenvat credit in respect of inputs in process and inputs contained in final product in stock as on 01.04.2007, as per the provision of Rue 11(2) of Cenvat credit Rules, was discovered by the Jurisdictional Central Excise Officers in course of scrutiny of ER-1 returns for April 2007 which had been submitted on 14.08.2007, that in view of this, the appellant cannot be accused of having suppressed any relevant facts from the Departmen .....

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ase in their favour on merits as well as on limitations and hence, the requirement of pre-deposit may be waived for hearing of the appeal and recovery thereof may be stayed. 4. Sh. Ranjan Khanna, Ld. DR opposed the stay application, and pleaded that in terms of provisions of Rule 11(2) of Cevat Credit Rules, the appellant at the time of opting for SSI exemption were required to pay an amount equal to the cenvat credit involved on the inputs lying in stock, inputs in process and the inputs contai .....

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r clearance for home consumption and according to this provision, if after reversal of the credit, cenvat credit involved on the inputs in stock, inputs in process or inputs contained in final product lying in stock as on the date of opting for exemption, if any, cenvat credit is still left that credit shall lapse and it cannot be allowed to be utilized for payment of duty on any excisable goods whether cleared for home consumption or for export, that the appellant had filed ER-1 return for the .....

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pute that the appellant had opted for SSI exemption under notification no. 8/03-CE on 31.03.2007 for the next financial year. As per the provisions of Rule 11(2) of the Cenvat Credit Rules, 2004, when a manufacturer opts for exemption from the whole of duty of excise leviable on the goods manufactured by him, under a notification based on value or quantity of clearances in a financial year and who has been taking cenvat credit on the inputs or input services before such option is exercised, he s .....

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ion or for export. In this case as on 31.03.2007, the cenvat credit involved on the inputs in stock, inputs in process and inputs contained in final product lying in stock was ₹ 28,53,077/- out of which the cenvat credit involved in the inputs lying in stock was ₹ 11,53,089/-. The appellant only reversed the cenvat of ₹ 11,53,089 but did not reverse the credit in respect of the inputs in process and the inputs contained in final product lying in stock as on 31.03.2007. The poin .....

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7.2007 they should not have been allowed the SSI exemption and accordingly they should be treated as having opted for the exemption only w.e.f. 19.07.2007. We do not accept this plea as when the appellant had given clear option for availing of the SSI exemption w.e.f. 01.04.2007 they should be treated as having started availing of this exemption w.e.f. 01.04.2007 and therefore, the provisions of Rule 11(2) would become applicable. Therefore, on merits the appellant do not have prima facie case i .....

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in case of excisable goods on which duty of excise has not been levied or paid, short levied or short paid, where under the Rules made under this Act, a periodical return showing particulars of duty paid on excisable goods during period to which the said return relates is to be filed by a manufacturer or producer, the date on which such return is so filed is to be treated as the relevant date. Only in the case where no periodical return has been filed though, it was required to be filed, the la .....

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