TMI Blog2015 (4) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, CHENNAI [LB]) has gone into details of various factors to be considered while permitting various losses on their receipt of the goods for purpose of availment of Cenvat credit under Rule 3(1) of Cenvat Credit Rules. We also note that the Commissioner in the impugned order has taken note of such factors and discussed in detail the relevance or irrelevance of each of the five factors enumerated in the larger bench decision. In nutshell, the conclusion is that Cenvat credit availed and utilized on short receipt of base oil in excess of 0.1% is not permissible. We do not find any thing wrong in the said findings. - However, penalty is set aside - Decided partly in favour of assessee. - APPEAL NO. E/117/12-MUM - - - Dated:- 28-4-2015 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2009 which was within the normal period of limitation. In the order demand for the said period, interest was confirmed. Penalty equal to duty i.e. ₹ 8,37,482/- was also imposed under Rule 15(1) of Cenvat Credit Rules, 2004. Aggrieved by the said order, the appellant is before us. 2. Ld. Counsel for the appellants contention is that the department has prescribed a limit of 0.1% in respect of lubricated oil base stock vide Board Letter No. 11-A/6/70/CX.8 dated 30/4/1971. He further submits that these limits were prescribed when the warehousing provisions were applicable to the petroleum product and goods were moved from refinery to warehouse or from one warehouse to the other i.e. goods were non-duty paid. Ld. Counsel submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Tribunal, Ld. Commissioner has held that Cenvat credit availed and utilized on short receipt of base oil in excess of 0.1% is not permissible and hence the same is recoverable from them. It was further submitted that though the Ld. Commissioner has held that Cenvat Credit availed and utilized on short receipt in excess of 0.1% is sustainable but has confirmed the demand without extending the benefit of 0.1%. 3. On the other hand, Learned A.R. submitted that loss in case of base oil is far less compared to product like Naptha and can not be permitted to the extent of 1%. He further submitted that Hon ble Bombay high Court was dealing with Naphta and not base oil and has spoken about permissible limit and permissible limit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit availed and utilized on short receipt of base oil in excess of 0.1% is not permissible. We do not find any thing wrong in the said findings. In our view the said limit is in accordance with the instruction issued by the Central Board of Excise and Customs on the subject. We also agree with the Ld. A.R. that the limits will not be different in case of movement of goods which are duty paid or movement of goods which are non duty paid. Such losses will not depend upon duty paid or non duty paid nature of goods but will upon the inherent nature of the goods. We therefore reject the contention of the Counsel of the appellant that the limits prescribed are applicable only for non duty paid goods. Another contention of the Ld. Counsel w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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