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TMI Blog2018 (2) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act, 1985 and are availing the benefit of cenvat credit under Cenvat Credit Rules 2004. Show-cause notice was issued to the appellant on various allegations which are reproduced herein below: Period Allegation Amount 06/2004 to 02/2005 Removal of fabrics as such under delivery challan without payment of duty and without reversing cenvat credit. The DCs indicate that the fabric were issued for storages, sending back the rejected fabric to the supplier, sampling, issue of extra fabric, trial runs. 5,40,678/- 08/2003 to 12/2004 1. Availed cenvat on capital goods such as steel structures falling under Chapter 73 viz steel racks, slotted angle rack, self supporting ladder which were used for storage of raw materials and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Five Thousand Two Hundred and Ninety One only) along with interest under Section 11AB and penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) under Section 11AC vide Order dated 14.11.2006. Aggrieved by the said order, appellant filed appeal before the Commissioner and the Commissioner set aside the Order-in-Original and remanded the matter to the original authority for reexamination vide order dated 30.07.2007. Against the said order, appeal was filed before the CESTAT and the CESTAT vide Final Order No. 870/2008 dated 22.07.2008 remanded the matter to the original authority with a direction to decide the matter independently without being influenced with any of the observations made by the Commissioner (Appeals). The adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5,40,678/- (Rupees Five Lakhs Forty Thousand Six Hundred and Seventy Eight only) the appellant accepted the demand of Rs. 95,400/- (Rupees Ninety Five Thousand Four Hundred only) and the same was reversed but contested the demand of Rs. 4,45,278/- (Rupees Four Lakhs Forty Five Thousand Two Hundred and Seventy Eight only) on the ground that the demand is made in terms of Rule 3(5) of Cenvat Credit Rules, 2004. He further submitted that during the relevant period, there was no provision for recovery. It was only on 01.03.2013 the recovery mechanism was added. Therefore, the demand fails. For this submission, he relied upon the decision in the case of Heidelberg Cement India Ltd. Vs. CCE - 2017-TIOL-2120-CESTAT-BANG. He also submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that invoices are not consigned to the appellant. The learned consultant submitted that cenvat credit was wrongly denied and the appellant filed documents to establish the receipt of the goods in the factory but the same were not considered by both the authorities. Further with regard to another allegation for the period September 2003 to February 2005, cenvat credit of Rs. 3,98,548/- (Rupees Three Lakhs Ninety Eight Thousand Five Hundred and Forty Eight only) was collected through debit notes without reversing credit involved. Out of this the appellant accepted the demand of Rs. 8723/- (Rupees Eight Thousand Seven Hundred and Twenty Three only) and contested the demand of Rs. 3,89,825/- (Rupees Three Lakhs Eighty Nine Thousand Eight H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no recovery provision during the relevant period which came only on 01.03.2013. Similarly amount collected through debit notes without reversing the credit to the tune of Rs. 3,89,825/- (Rupees Three Lakhs Eighty Nine Thousand Eight Hundred and Twenty Five only) cannot be recovered from the appellant because there was no recovery provision during the relevant period which came only on 01.03.2013 and in view of the decision in the case of Heidelberg Cement India Ltd., the Department cannot effect the recovery of these amounts from the appellant. With regard to denial of other credits for the period January 2004 to February 2005 for the fabrics consigned to others received by the appellant, I find that the appellants have submitted de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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