TMI Blog2017 (5) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of The Commissioner, Central Excise Goa, Versus M/s. Nestle India Ltd., [2011 (6) TMI 164 - BOMBAY HIGH COURT], where it was held that the appeals by the Revenue to the contrary are clearly not maintainable. Appeal dismissed - decided against Revenue. - E/2540/06, E/89430/13 E/89431/13 And E/CO-464/06, E/CO-91103/15, E/CO/91093/15 - A/86618-86623/17/SMB - Dated:- 31-3-2017 - Mr. M.V. Ravindran, Member (Judicial) Shri N.M. Prabhudesai, Supdt. (AR), for appellant Shri Vishal Agarwal, Advocate, for respondent ORDER Per: M.V. Ravindran These appeals have been filed by Revenue against Order in Appeal No.CEX/AKD/130 to 135 NSK/APL/ 2006 dated 22-6-2006 passed by Commissioner (Appeals), Central Excise Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2011 (273) ELT 132 again upheld the assessee s eligibility to avail credit of the duty paid by the supplier. The Revenue being aggrieved by the Orders of the Commissioner (Appeals) has preferred these appeals. 4. The learned D.R. appearing for the Revenue has contended that Inox should not have paid the differential duty in respect of that quantity of the Nitrogen/Cracked Ammonia which the assessee had failed, to offtake though agreed for in the agreement. It is his submission that since gas qua the quantity in respect of which differential excise duty has been paid was not received, the assesse was not eligible to avail the benefit of cenvat credit in respect of the same. 5. The Ld. Counsel appearing on behalf of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue was not entitled to question the correctness of the duty paid by the manufacturer, at the end of the recipient of the goods, without there being any challenge to the assessment to duty at the end of the manufacturer. The in this regards being settled by the Hon ble jurisdictional High Court in the case of Nestle India Ltd , the appeals by the Revenue to the contrary are clearly not maintainable. The relevant observations in the judgements cited by the counsel for the assessee are extracted herein below for ease of reference. (i) CCE vs Nestle India Ltd 2012 (275) ELT 49 (Bom) 5. Mr. Ferreira, learned Assistant Solicitor General for the Appellant, submitted that the scheme of law is that if, excise duty is colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Guwahati Carbons Ltd. wherein after referring to earlier judgments of this Court in CCE v. Ranbaxy Labs Ltd., 2006 (203) E.L.T. 213 and CCE v. Swaraj Automotives Ltd., 2002 (139) E.L.T. 504 and judgment of Madras High Court in CCE v. CEGAT, Chennai, 2006 (202) E.L.T. 753 the plea of the assessee was upheld. Learned counsel for the Respondent is unable to distinguish the applicability of the judgment relied upon on behalf of the Appellant. (iii) CCE Vs. MDS Switchgear reported in 2008 (229) ELT 485 (SC) 7.The Tribunal has come to the conclusion that in fact there was no loss of Revenue. It accepted the appeal by recording the following reasons: Reasons given by the Appellants for the alleged inflation of the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is as to whether the cenvat credit in respect of moulds and dies available to the Appellant would be restricted only to the duty payable on the transaction value of the moulds and dies or whether they would be eligible for Cenvat credit of the duty actually paid by M/s. Maruti Udyog Limited. We find that there is no evidence produce by the Department that the assessment of duty in respect of duty payable by M/s. Maruti Udyog Limited on the moulds and dies had been revised by the jurisdictional central excise authorities or that the excess excise duty paid by M/s. Maruti Udyog Limited has been refunded to them. The Cenvat credit available to the Appellant can be varied only if the duty paid by M/s. Maruti Udyog Limited had been varied, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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