TMI Blog2018 (4) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. Appeal allowed - decided in favor of appellant. - Appeal No. E/51150/2017 - Final Order No. 51388/2018 - Dated:- 18-4-2018 - Hon ble Mr. Justice (Dr.) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member (Technical) Shri Rohit Chaudhary Ms. Preeti Khiwani, Advocates for the appellant Shri S.K. Bansal, DR for the respondent ORDER Per V. Padmanabhan The present appeal is against the Order-in-Original No. 85/2016-17 dated 31.03.2017. The appellant is engaged in the manufacture of HDPE pipes and LLDPE pipes and related products. A part of the manufactured goods are cleared on payment of duty and some part is also clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of an amount at the rate of 6%. Department was of the view that Explanation (I) under Rule 6(3) of the CENVAT Credit Rules, 2004, forbids a manufacturer from changing the option during the remaining part of a Financial Year. Accordingly, demand stands raised for the period July 2014 to March 2015 for an amount at the rate of 6%. It has been argued on the behalf of the appellant that such Explanation is not applicable in view of the non-obstante clause at the beginning of Rule 6(3). It is argued that they have opted to follow Rule 6(2) and maintained separate accounts with effect from 01.07.2014, and hence the demand is not justified. From the record, we note that with effect from 20.11.2012, the appellant has opted to pay an am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty is not justified since the incorrectly availed credit has since been paid back along with interest. Hence, we set aside the imposition of mandatory penalty and restrict penalty to 15% of the duty amount. 3. CENVAT credit availed at the time of merger of various entities with the appellant in the year 2009 The department has objected to the availment of CENVAT credit of an amount of ₹ 2,39,995/-, lying in the unutilized accounts of the merged entities, for the reason that the appellant failed to provide any CENVAT documents issued under Rule 10 of the CENVAT Credit Rules, 2004. Even though the said amount has already been reversed along with the interest, the appellant is aggrieved by the fact that mandatory penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull with the state Government. Subsequently, a part of the said amounts deposited is sanctioned as incentive by the Madhya Pradesh Trade and Investment Facilitation Corporation Ltd. Since no part of the VAT/CST collected by the appellant is retained by them, the situation is clearly distinguishable from the case decided by the honourable Supreme Court in Super Synotech (Supra). Similar views have been taken by the Tribunal in the case of Khanna Polyware (Supra). By following the earlier decision of the Tribunal, we are of the view that such amount of incentive received under the scheme formulated by the Madhya Pradesh Government cannot be included in the assessable value for payment of Central Excise Duty. Consequently, we set aside demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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