TMI Blog2017 (5) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... on inputs. Reversal of credit subsequently by the respondent is accepted and such reversal of credit is held as satisfying the conditions of the notification by the Tribunal in the case of Omkar Textile Mills Pvt Ltd [2013 (10) TMI 1298 - CESTAT AHMEDABAD] - benefit available - appeal dismissed - decided against Revenue. - E/1269/2007 - A/86666/17/EB - Dated:- 10-4-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri S Hasija, Superintendent (AR) for the appellant Shri J H Motwani, Advocate for the respondent ORDER Per M V Ravindran This appeal is filed by Revenue against Order-in-Appeal No: SVS/206/NGP-II/2007 dated 12/06/2007 passed by the Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and granted the relief to the assessee by setting aside the demands and interest thereof and penalties. 4. Learned Authorised Representative draws our attention to the order-in-original and order-in-appeal. It is his submission that the conditions of the notification No. 30/2004-CE are very clear and the said conditions implied that respondent should not have been availed CENVAT credit on the inputs. He would submit that there is no dispute that the respondent had availed CENVAT credit but reversed the same at the time of filing the returns before the authorities. He would submit that the Hon ble Supreme Court in the case of Eagle Flask Industries Ltd v. Commissioner of Central Excise, Pune 2004 (171) ELT 296 (SC); Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Notification No.30/2004-CE. The said notification No.30/2004-CE only states about non-availment of the CENVAT credit of the duty paid on inputs. Reversal of credit subsequently by the respondent is accepted and such reversal of credit is held as satisfying the conditions of the notification by the Tribunal in the case of Omkar Textile Mills Pvt Ltd (supra). We reproduce the relevant paragraphs: 6.1 So far as Point No.(i) above is concerned, this Bench in Para 7 of the remand order dated 12-10-2010, observed that in view of Gujarat High Court's orders in the case of CCE v. Ashima Dyecot Ltd. [2008 (232) E.L.T. 580 (Guj.)] and CCE, Ahmedabad v. Maize Products [2008 (89) R.L.T. 211 (Guj.) = 2009 (234) E.L.T. 431 (Guj.)] , re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd demands confirmed against the appellants by the adjudicating authority. Vide the Order dated 21-5-2012, in the second remand, this Bench has to direct the adjudicating authority to give copy of the said report of the Assistant Commissioner to the appellants to defend the case. Further, appellants wanted to know the basis on which the shortage in Cenvat credit reversal was worked out by the Department. It is observed from the chart given in Para 13.2 of the impugned OIO dated 10-11-2009 passed by Commissioner earlier that total credit reversed by the first appellant during the period December 2004 to November 2005 was more than the pro rata credit required to be reversed and calculated by the Revenue. There was, therefore, no reason to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants is not proper, it has to be held that reversal of Cenvat credit on pro rata basis was correctly done by Appellant Nos.1, 2 3. So far as appellant No.4 is concerned, already a credit of ₹ 8,33,578/- has been reversed against an amount of ₹ 6,91,464/- required to be reversed on pro rata basis. 7. Secondly, we find that in the case of Spentex Industries Ltd (supra) the Tribunal had occasion to consider the issue from another angle as to whether the payment of 6% of the value of finished goods cleared in terms of Rule 6 of the CENVAT Credit Rules would mean that credit is not taken, thus satisfying the condition of the notification. Principal Bench in paragraph 5 of the order held as under: 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. It can be noted that both the decisions are directly on the issue and hence binding on the specific issue before us. 9. As regards the judgment produced by the Learned Authorized Representative in the case of Cheviot Company Ltd (supra), we find in that case, the assessee had not taken any credit of the basic duty and additional duty but they took the CENVAT credit of education cess. We find that the facts of the case in hand are totally different than that in the case of Cheviot; further in the case in hand the first appellate authority has considered the entire issue from the factual matrix and has relied upon the various Board's circular and also the decisions of the Tribunal in various other cases on the very same issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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