TMI Blog2005 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable to the assessee on the quantity of HFO short received in the factory and the same was not used in the manufacture of final product and also the assessee was liable for penalty under section 11AC of the Central Excise Act, 1944 for the excess availment of Modvat/Cenvat credit during the period after 01.04.2000." 3. The short controversy that arises in this case is that the respondent - assessee was in receipt of consignment of HFO in his factory from the importer under relevant invoice evidencing the payment of Counter Vailing Duty on the goods consigned under that invoice by the importer. The respondent - assessee was entitled to avail modvat credit on that basis. 4. The facts which are further necessary for present purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel for the Revenue that modvat credit is available on the inputs used and therefore, the actual quantity consigned under the invoices is not relevant consideration. Learned counsel for the respondent - assessee on the other hand has urged that in the facts and circumstances, there being no case of diversion of the goods from the place of commencement of journey until the place of receipt in the factory and full utilisation of the quantity of input received in the factory for the purposes of manufacturing the end product, the assessee on the basis of CVD paid by the importer on such goods as per invoice is eligible for availing modvat credit. It was also urged that in the facts and circumstances, the entire CVD was paid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iversion of inputs received under invoice to any other use is found, there is no provision to avail lesser modvat credit than what has been proved to have been paid on the entire goods received and used in factory of manufacturer. 10. The conclusion reached by the Tribunal is, therefore, justified and does not call for any interference. 11. Since we have held that the modvat credit has rightly been availed by the assessee, the question of penalty for over availment of modvat credit also would not arise. We, therefore, are not adverting to the alternative ground that even if modvat credit has wrongly been availed on the part of goods received, still there being no deliberate attempt on the part of the assessee to avail such extra mod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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