TMI Blog2017 (12) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Creative Enterprises [2008 (7) TMI 311 - GUJARAT HIGH COURT]. Denial of credit at the time of merger of M/s TVBILP with the appellant - only ground raised in the SCN is that the permission of the jurisdictional Dy. Commissioner was not taken as required under Rule 10(3) of the CCR - Held that: - the appellant is in a position to satisfy the Deputy Commissioner on the requirement of Rule 10(3). When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue denovo - matter on remand. CENVAT credit on PMB - Revenue was of the view that since the product PMB is not a manufactured product, no cenvat credit would be admissible on the inputs and input services used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute on payment of duty on Bitumin Emulsion, the dutiability of the product PMB was in dispute and it was held by the Hon ble Supreme Court that the process does not amount to manufacture in the case of Osnar Pvt. Ltd. - 2012 (276) ELT 162 (SC). The appellant was availing cenvat credit on input and input services which were common to both products. The department was of the view that since the product PMB was not a manufactured product, there is no need to pay the duty on the same. But a view was taken that the appellant had wrongly availed the cenvat credit on input and input services attributable to this product. Further, it is on record that during the period September 2012 to June 2012, the appellant was paying duty on the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department. 3. Sh. S. S. Gupta, ld. CA submitted that during the period September 2012 to November, 2012, the appellant already paid tax amounting to ₹ 60,89,453/- on the product PMB, hence, he submitted that during the above period there was no need to reverse the cenvat credit availed which already stands reversed by payment of above duty. So, he submitted that the above amount may be taken as paid towards overall demand for reversal. With reference to the denial of credit balance transferred at the time of merger of M/s TVBILP by the appellant, he submitted that the stipulation in Rule 10 of the Cenvat Credit Rules requiring the permission of the jurisdictional Deputy Commissioner was included only w.e.f. 02.02.2017. The disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the tax. With reference to the denial of credit on merger, he submitted that Rule 10(3) requires the appellant to satisfy certain conditions. It has not been verified whether such conditions already stand satisfied and hence the credit on merger has been denied by the adjudicating authority. Ld. AR for the department further submitted that the product PMB has been held as not manufactured. Consequently, it stands in a footing different from manufacture of exempted product which comes within the ambit of Rule 6(3) of the Cenvat Credit Rules. Hence, he submitted that credit of input and input services attributable to this product should not have been taken by the appellant and since taken it should be reversed. 5. We have heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the finding regarding manufacture applies equally to levy of duty as well as eligibility to Modvat credit. It there was no manufacture, there could be no payment of duty also. There is no dispute that the appellants had paid a higher amount of duty on the goods than the credit taken. If the credit taken was not eligible, what was required was only to adjust the duty paid against that credit . 7. The another grievance of the appellant is with reference to the denial of credit at the time of merger of M/s TVBILP with the appellant. The only ground raised in the show cause notice is that the permission of the jurisdictional Dy. Commissioner was not taken as required under Rule 10(3) of the Cenvat Credit Rules. The specific rule was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re credit taken should be expunged is perverse. It is also seen that an Explanation-1 has been inserted in Rule 6 to the effect that for the purpose of this rule, exempted goods shall include non-excisable goods cleared from the factory for a consideration. 10. By following the requirement of Rule 6(3) the appellant has already paid an amount @ 6% of price of PMB which in our view suffices. We are of the view that there is no justification for demanding reversal of the entire credit taken. Since the matter is being remanded, the adjudicating authority is also directed to verify the amount actually reversed and to requantify the overall demand, if any. He will also decide the issue of penalty accordingly. 11. In the result, appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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