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2016 (10) TMI 65 - CESTAT HYDERABAD

2016 (10) TMI 65 - CESTAT HYDERABAD - TMI - Cenvat demand alongwith interest - Cenvat credit irregularly availed on Ethanol from April, 2011 to March, 2012 - Held that:- the issue is now fully covered in favour of the appellants. It is also noted that even in the case of Asian Colour Coated Ispat Ltd V/s CCE Delhi [2014 (9) TMI 974 - CESTAT NEW DELHI], where originally there was difference of opinion between two members of the Tribunal, as per majority decision it was held that CENVAT Credit can .....

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ealed by Department before High Court and Hon'ble A.P. High Court had dismissed the same reported in [2015 (10) TMI 1036 - ANDHRA PRADESH HIGH COURT] and the same has attained finality upto Hon'ble Supreme court, it is seen that Commissioner (Appeals), in the appellant's own case, for different period July 2006 to May 2011, has allowed the appeals on identical issue. - Decided in favour of appellant - E/27054/2013 - A/30642/2016 - Dated:- 22-7-2016 - Mr. Madhu Mohan Damodhar, Member(Technical) S .....

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and input service under CENVAT Credit rules, 2004. During the course of verification of records of the appellants, for the period from April, 201 1 to March, 2012, it was observed that they were receiving ethanol (un-denatured)/alcohol from suppliers on payment of central excise duty, classifying the product under various headings viz., CETH No.29389090, 29121200, 22072000 of the First Schedule to Central Excise Tariff Act, 1985 (CETA) even though said product was exempted. It was observed that .....

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was issued to the appellants proposing, inter alia, recovery of CENVAT credit of ₹ 1,32,000/- with interest allegedly irregularly availed on Ethanol from April, 2011 to March, 2012, on the grounds that the said item was non-excisable, availment and utilisation of such credit was irregular. After due process of law, the Additional Commissioner of Customs vide Order in Original dated 31.12.2012 confirmed the proposals in the show cause notice. Aggrieved by the impugned OIO, the appellants fi .....

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… …The conclusion is that the credit which was taken wrongly would arise when an assessee is required to determine whether the inputs/capital goods received by him are liable to duty or not and whether duty is payable or not. There is no rule which puts an obligation on the receiver of goods. When we take note of the fact that the assessee may receive inputs/capital goods/services classifiable under almost all the headings, it is difficult to imagine that legislature would require .....

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t be applied blindly to arrive at a conclusion against the assessee. 8. In view of the above discussions, I find that the impugned orders cannot be sustained. Accordingly, the impugned orders are set aside and the appeals are allowed. The stay application No. 25728/2013 in Appeal No. 25540/2013 also stands disposed of. 2.2. Ld. Advocate further pointed out that the Department appeal against the aforesaid Tribunal decision was dismissed by Hon'ble A.P. High Court in Commissioner V/s Neuland L .....

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