TMI Blog2007 (11) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... rder].- 1. This appeal is directed against the Order-in-Appeal No.PI./BKS-108/04,dated 29-9-2004. 2. The relevant fact that arises for consideration is that the appellant were served show cause notice for denial of Modvat credit of Rs.2, 18,893/-on the ground that the appellants had claimed transit insurance in respect of these inputs/capital goods which were damaged during transit, as they had claimed transit insurance on inputs and capital goods, and as there was damage the same could not be used as input. Further, confirmation of duty demand of Rs 1,41,172/- and has arisen on the appellant on the ground that they had availed the benefit of Cenvat/Modvat credit on the finished goods which were cleared from the factory received back u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such inapplicable and ineligible credit if any. He submits that the show cause notice was issued to the appellant on 18-11-2001 by interpreting the provisions of Rule 57-I which were not in the statute on the date of issue of the show cause notices. He submits that issue is now squarely covered by the decision of Division Bench in the case of Sunrise Structurals Engg. Ltd. Ors. v. CCE, Nagpur as reported at 2004 (117) ECR 307 (Tri.-Mumbai) and followed by the Division Bench decision of the Dutta Metal Industries v. Commissioner of Central Excise, Mumbai [2007 (217) E.L.T. 306(Tri. - Mum.) = 2007-TIOL-284-CESTAT-MUM) and Surindra Engg. Co. Ltd. Commr. of C. Ex Belapur as reported at [2007 (210) E.L.T. 287 (Tri. Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. I find that the contention of the ld. SDR is correct. The Division Bench of Tribunal in the case of Hindalco Industries ld. (supra) has held against the assessee which was in respect of Rule 16. The provisions of Rule 16 and Rule 57F (4) were pari materia. The findings of the Division Bench in the case of Hindalco Industries are very relevant which are as under:- "Once goods are removed from the factory premises on payment of duty, the question of them being marketable or non-marketable does not arise as duty is to be discharged all the goods on removal from the factory premises. Once such duty is paid on removal of the goods, the provisions of Central Excise Rules as regard the payment of duty are satisfied and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions as may be specified by the Commissioner". From the above reproduced portion it is very clear that the issue is covered against the appellant, it is undisputed that the finished goods which returned back to factory of appellant's, was not subjected to any activity as enumerated in Rule 16 of Central Excise Rules, 2002. As such, impugned order to the extent it uphold to confirmation of demand on Rs. 1, 41,177/- is correct and does not require any interference. The appellant's appeal to that extent is rejected. 5A. As regards the appeal of the appellant against the confirmation of Rs.2, 18,893/- I find from the order-in-original that the confirmation has been done by the adjudicating authority under the provisions of Rules 57-I and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
