TMI Blog2017 (3) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the case of the Revenue is that the respondent has availed exemption, in that circumstance, the goods to be treated as exempted goods and the respondent is liable to pay 8% of the value of the exempted goods which means chassis plus body. Admittedly, in this case, the respondent has not paid the amount of 8% of the value of chassis at the time of clearance of motor vehicle, therefore, the respondent has not paid the correct amount under Rule 6 (3) (b) of Cenvat Credit Rules, 2001 - demand of duty alongwith interest upheld. Penalty - Held that: - As there is a difference opinion on the issue of imposing penalty on the respondent, therefore the matter be placed before the Hon’ble President to appoint third Member. Appeal disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis received from the customer but had taken cenvat credit on the other inputs used in the manufacture of such vehicles. As the appellant had availed modvat/cenvat credit in respect of duty paid on other inputs, the goods cleared by the appellant were found to be not eligible for exemption. The respondent had paid an amount equal to 8% on the value of the bodies only, fabricated/mounted on the chases received from the private customer on the clearance of the vehicles under Rule 6 (3) (b) of Cenvat Credit Rules, 2001. The provisions of this Rule did not appear to be applicable to the appellant as the goods under consideration were not exempted. Therefore, the show cause notices were issued to the respondent which was adjudicated by the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid and no the credit of duty paid on other inputs for fabrication of bodies of that chassis has been taken. Admittedly in this case the respondent has taken the credit on inputs, therefore, the respondent is not entitled for exemption. Moreover, the case of the Revenue is that the respondent has availed exemption, in that circumstance, the goods to be treated as exempted goods and the respondent is liable to pay 8% of the value of the exempted goods which means chassis plus body. Admittedly, in this case, the respondent has not paid the amount of 8% of the value of chassis at the time of clearance of motor vehicle, therefore, the respondent has not paid the correct amount under Rule 6 (3) (b) of Cenvat Credit Rules, 2001. In that circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing condition:- If manufactured out of chassis falling under heading No. 87.06 on which duty of excise has been paid and no credit of duty paid on such chassis and other inputs used in manufacture of such vehicle has been taken under Rule 57AB or Rule 57AK of the C.E.R., 1944. 10.3 The above condition is clear and unambiguous. It has two parts. The first part states that no credit of duty paid on the chassis is taken. The second part states that no credit of duty paid on other inputs is taken. The party did not take cenvat credit of duty paid on the chassis received from the customer but had taken cenvat credit on the other inputs used in the manufacture of such vehicles. As the party had evailed modvat/cenvat credit in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over an analogous situation. The Hon'ble CEGAT has held that after payment of the amount of 8%, the noticees cannot be said to have availed credit on inputs. Both these CEGAT order have since been affirmed by Hon'ble Supreme Court reported as 1996 (81) ELT 3 (SC) and 2006 (133) ECR 0150 (SC). In the instant case , the exempted goods are described as complete motor vehicles under Notification No. 3/2001 dt. 1.3.2001 and 6/2002 dt. 1.3.2002. The 'total price' referred in Rule 6(3)(b) of CCR, 2001 shall refer to the assessable value of complete motor vehicle, as per Chapter Note 3 to Chapter 87 of Central Excise Tariff. However, I find that the noticee had reversed / paid an amount to 8% of the value of the bodies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner (appeals) in respect of non-imposition of penalty is also set aside and the order of adjudicating authority is restored in toto. 12. In the result, the Revenue s appeal is allowed. Devender Singh Member (Technical) Difference of opinion As there is a difference opinion on the issue of imposing penalty on the respondent, therefore the matter be placed before the Hon ble President to appoint third Member to resolve the following issue: - Whether in the facts and circumstances of the case, the penalty on the respondent can be imposed or not? Devender Singh Member (Technical) Ashok Jindal Member (Judicial) (Order pronounced in the court on 19.01.2017) - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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