TMI Blog2016 (7) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... fication, had been accepted by the Revenue in the subsequent order of adjudication. Thus, we hold that there was nothing much left for the Id. Commissioner to examine the same and except arithmetical accuracy of the amount reversed and interest if any, paid. Accordingly, we allow the appeal on merits. - Decided in favor of assessee. - Ex. Appeal No. 4101/12 - Final Order No. 70195/2016 - Dated:- 9-5-2016 - Mr. Anil Choudhary Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Abhishek Raju, Advocate for the Appellant (s) Shri Rajeev Ranjan, Joint Commr. (D.R.) for the Department ORDER The appellant, a manufacturer of glassware, is in appeal against order-in-original dated 4/9/12 passed by the Commissioner of Central Excise, Customs and Service Tax, Kanpur, by which he has rejected the application dated 2/7/2010 filed by the appellant under Section 69 of the Finance Act, 2010 read with Rule 57CC of the erstwhile Central Excise Rules, 1944. 2.1 The brief facts are that the Appellant M/s Pallwal Glass Works having Central Excise Registration No. 2/SKB/92 dated 01.07.1992 was engaged in the manufacture of Glass and Glassware falling under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property to Mrs. Neelam Yadav. 2.6 Against the said Interim Order dated 24/3/2003 passed by the Honourable High Court in writ petition number 1546 (M/B) of 2003, the present appellant filed SLP (C) No. 7660 of 2003 wherein direction for status quo have been passed by the way of Interim order by the Apex Court on 6/5/2003. 2.7 Or scrutiny of the RT-12 returns filed for the period from December, 1977 to March, 1998 by the Applicants, it was observed by the Central Excise Officers that they availed modvat credit in respect of inputs namely 'cullet' and 'other waste of glass' falling under Tariff Item No. 7001.10 and used the same in the manufacture of final products which were chargeable to duty and other final products which were not chargeable to duty. They did not maintain separate accounts in respect of the said inputs used in the manufacture of dutiable goods and exempted goods, as envisaged under sub-rule (9) or rule 57CC of the erstwhile Central Excise Rules, 1944. They, however,. determined the quantity of 'cullet and other waste and scrap of glass' consumed in the manufacture of exempted final product on proportionate basis by calculating the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said quantity and the month as shown in the following chart 'B' and the same was reversed. Chart -B Month Total credit availed Quantity of inputs used Amount of credit atttributable to Total MT Dutiable goods MT Exempted goods MT Ratio Exempted goods dutiable goods Dutiable goods Rs. Exempted goods Rs. 1 2 3 4 5 6 7 8 Dec/97 7,404.00 36.936 31.499 5.431 1:.5.818 6,318.00 1,086.00 Jan/98 12,527.00 53.215 43.740 9.474 1:4.627 10,301.00 2,226.00 Feb/98 16,758.00 80.820 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of rule 57CC of the Central Excise Rules, 1944 as Modvat credit was availed in respect of input used in the manufacture of the same. He confirmed the demand of an amount of ₹ 9,28,815/-(after deducting the amount of ₹ 5,473/already reversed through RG23A from ₹ 9,34,288/-), the amount calculated at the rate of 8% of the exempted goods manufactured), and ordered payment of the said amount from the RG 23 A Pt. II Account or through cash. He also imposed a Penalty of ₹ 1,00,000/- under Rule 173 Q of the Central Excise Rules, 1944. 2.11 Applicant, after rejection of his appeal by the Id. Commissioner of Central Excise (Appeals), Kanpur has preferred an Appeal before this Tribunal, New Delhi which had been registered as Appeal No. 2828/2009 dated 06.10.09. The Appeal is pending before the Hon'ble CESTAT, New Delhi and hence the dispute relating to adjustment of credit on inputs used in or in relation to exempted final products is still pending. 2.12 In the meantime, the Assistant Commissioner of Central Excise, Agra, resorted to coercive measures for recovery of dues adjudged in the Order-in-Original cited above and in the process attached residenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder and make an application to the Commissioner of Central Excise along with documentary evidence and a certificate from a Chartered Accountant or a Cost Accountant certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of the final products, which are exempted from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty within a period of six months from the date on which the finance Bill, 2010 receives the assent of the President. (3) The Commissioner of Central Excise shall on receipt of an application under sub-section (2), verify the correctness of the amount paid within a period of two months from the date of receipt of the application and in case the amount so paid is found to be less than the amount payable, he shall call upon the applicant to pay the differential amount along with interest, which shall be paid within a period of ten days from the date of receipt of the communication from the Commissioner in this regard. 3.3 In nutshell, the following procedure has to be adopted by the manufacturer/person that opts to pay the amount in accordance with the provisions of rule 57CCC as inser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products (glass glassware) which were exempted from duty/not chargeable to duty on prorata basis according to the weight of dutiable and non-dutiable final products manufactured. The amount so calculated was paid by making a debit entry in the RG23 Pt. Il account as under: Sl No. Month Amount Calculated on prorate basis Rs. Debit Entry in RG23A Part II 1. December, 1997 1,086.00 1258 dated 31.03.1998 2. January, 1998 2,226.00 215 dated 18.05.1998 3. February, 1998 1,600.00 386 dated 24.06.1998 4. March, 1998 561.00 494 dated 20.07.1998 TOTAL 5,473.00 3.7 The authenticity of the figures in chart A and Chart B is verifiable from the charts given in the Show Cause Notice and in the Order-in-Original. 3.8 Reversal of proportionate Modvat credit is admitted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant have failed to substantiate the correctness of the amount mentioned in the application and had also failed to produce the relevant records, even on demand by the Central Excise Department. With these observations, the application was held not maintainable and hence, rejected. 5. Being aggrieved, the appellant is before this Tribunal. 6. The learned Counsel, Shri Abhishek Jaju, appearing for the appellant, submitted that the amendment brought by Section 69 of the Finance Act 2010, giving retrospective effect and as such the demand raised earlier by the Department is no longer tenable under the provisions of the Finance Act 2010 read with the provisions of Central Excise Rules 1944 read with Article 165 of the Constitution of India. He further urges that the substantive law having been changed the very basis of issue of show cause dated 23/9/98 have attained nullity. Further, under the facts and circumstances, the Id. Commissioner have accepted the applicability of the amendment brought into force by Finance Act 2010 in the facts of the appellant's case, but have denied the benefit on flimsy ground. Further, the Id. Counsel urges that the revenue having relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57CCC of the Rules expeditiously in accordance with law.. The. Id. Counsel further states that in view of the observation and directions of Honourable High Court, the order of Id. Commissioner is bad and fit to be set aside and the Appeal be allowed with consequential benefits including allowing of the refund of the amount deposited during the pendency of the dispute in appellate stage. 7. The Id. in AR for Revenue relies on the impugned order. 8. Having considered the rival contentions, we find that the appellant had reversed the proportionate Cenvat credit on taxable input during the relevant period within the spirit of Rule 57CCC as introduced with retrospective effect vide the Finance Act, 2010. We further hold that the Id. Commissioner have erred in disbelieving the Certificate of Chartered Accountant which was based on the data and facts contained in the SCN dated 23/9/98 which, after verification, had been accepted by the Revenue in the subsequent order of adjudication. Thus, we hold that there was nothing much left for the Id. Commissioner to examine the same and except arithmetical accuracy of the amount reversed and interest if any, paid. Accordingly, we allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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