TMI Blog2017 (10) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, no demand can be made against the assessee. No demand is sustainable against the assessee, therefore the penalty does not arise. Appeal allowed - decided in favor of assessee. - Application No. E/COD/50323/2017 Appeal No. E/50597 & 50107/2017-EX[SM] - FINAL ORDER No.56839-56840/2017 - Dated:- 22-8-2017 - Mr. Ashok Jindal, Judicial Member Present Ms. Sukriti Das, Advocate for the appellant Present Shri K. Poddar, DR for the respondent ORDER Per Ashok Jindal: Both the sides are in appeal against the impugned order. 2. The brief facts of the case are that during the course of audit it was observed that the assessee has been availing SSI exemption under notification no. 8/03-CE dated 01.03.2003 on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely. 3. In view of the above provisions it was alleged that as the assessee has failed to reverse the Cenvat Credit on inputs contained in semi finished goods i.e. the work in progress or inputs lying in stock, therefore, contravening the provisions of Rule 11(2) and 11(3) of the Cenvat Credit Rules 2004, the show cause notice was issued to the assessee to demand duty on that account along with interest and to impose penalty on the appellant. The adjudicating authority held that as the assessee is availing Cenvat Credit on certain input and on certain input have not availed Cenvat Credit moreover the Cenvat Credit availed on inputs but same had not been utilized, the only mistake committed by the assessee is that they have not made reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods can rise only when such inputs contained in work in progress or contained in finished goods can rise only when such inputs are cenvatable and the credit is availed on it by the assessee. In the present case, the main contention of the notice is availed on it by the assessee. In the present case, the main contention of the notice is that the inputs lying in stock / work in progress, were of cenvatable as well as non-cenvatable nature and the department had worked out the demand on the basis of figures available in the balance sheet. The balance sheet figures showed cenvatable as well as non cenvatable inputs / work in progress. Further, though they have not reversed the credit attributable on such goods lying in stock, they have not uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. The demand has been computed without considering the fact that whether such stock comprised of cenvatable and non cenvatable inputs while the same should have been restricted to that of the credit attributable to cenvatable inputs contained in such stock. Further, I find that instead of demanding the credit amount, duty has demanded on the value of inputs and on the value of work in progress, lying in stock while it should have been on the duty liability arising out of denial of SSI exemption in the next financial year. 6. I find that while adjudicating the case, the adjudicating authority has obtained a verification report from the range superintendent with regard to the fact that whether Cenvat Credit lying unutilized at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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