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2016 (8) TMI 663 - CESTAT AHMEDABAD

2016 (8) TMI 663 - CESTAT AHMEDABAD - TMI - Cenvat credit - wrong availment - inputs used in the manufacture of exempted as well as dutiable finished goods - failed to maintain separate records - Held that:- since there was no proposal for recovery/appropriation of said credit in the Show Cause Notice, therefore, its confirmation is incorrect, in as much as in the Show Cause Notice there has been specific proposal in this regard. - Recovery of 8%/10% of the value of the exempted product - R .....

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gible to reverse proportionate CENVAT Credit for the disputed period attributable to the inputs used in the manufacture of exempted product. Therefore, to ascertain the above facts and to apply the retrospective amendment by allowing the Appellant to reverse the proportionate credit, it is necessary to remand the case to the Adjudicating authority. Accordingly, the Appeal is remanded to the Adjudicating authority to ascertain the proportionate credit attributable to exempted products and allow i .....

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cate For Respondent: Shri J. Nagori, A.R. ORDER Per Dr. D. M. Misra Heard both sides and perused the records. 2. These two appeals are filed against OIA No.KKS/173 & 174/DAMAN/2008, dt.16.04.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Vapi. 3. Briefly stated the facts of the case are that the Appellants are engaged in the manufacture of Pharmaceutical products which were dutiable as well as exempted from payment of duty. A Show Cause cum demand notice was issued to them on 23. .....

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ell as dutiable finished goods lying in balance as on 07.03.2005 i.e the date on which the Appellant stopped payment of duty. On adjudication, the demands were confirmed, penalty of equal amount on the Appellant Company and personal penalty on the Director of the Company were imposed. Aggrieved by the said order, the Appellant preferred appeal before learned Commissioner (Appeals), who in turn, upheld the order of the lower authority except imposition of penalty of ₹ 3,95,783/- on the Appe .....

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ut viz. Plastic Polyethylene granules used in the manufacture of plastic bottles which were used as packing material of both dutiable and exempted product. It is his contention that in the manufacture of exempted goods, they have not availed CENVAT Credit on the principal raw material/input namely Dextrose Anhydrous, which has been categorically stated by the Managing Director Shri Sanjeev Tiwari in his statement dt.27.04.2005 as well as 02.03.2006. It is his contention that for use of negligibl .....

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ty to allow them to reverse the proportionate credit attributable to inputs used in the manufacture of exempted products. Further, challenging the confirmation of amount of ₹ 3,95,783/-, the learned Advocate submitted that there was no proposal for recovery of the amount in the demand notice, confirmation of the same is bad in law. On the Directors penalty the Ld. Advocate submitted there is no evidence on record to show the personal involvement of the Director in wrong availment of credi .....

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ive amendment, the Appellant would be eligible to reverse proportionate credit on the input attributable to the exempted product. It is his contention that the other claim of the Appellant that they had not availed the credit on other inputs including Dextrose, needs to be ascertained by the Adjudicating authority. 6. On the issue of confirmation/appropriation CENVAT Credit of ₹ 3,95,783/-, I do find merit in the plea of the Appellant that since there was no proposal for recovery/appropria .....

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