TMI Blog2018 (4) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... ase could have been disposed of even if the revenue involved was not substantial, by a mere endorsement of the Appellate Authority's finding, particularly on the interpretation of the Rule prevailing at the relevant time. The Tribunal is not expected to endorse legal findings by the Adjudicating Body/Authority and that of the First Appellate Authority. Since the Tribunal comprises of both a Judicial Official and an Administrative Member, it is expected to apply its independent mind and particularly on the question/issue of interpretation of the Rule. This has precisely not been done in the instant case. Appeal of the assessee restored to the file of the Tribunal for a decision afresh on merit and in accordance with law - appeal allowed. - Central Excise Appeal No. 14 of 2017 - - - Dated:- 16-4-2018 - S.C. DHARMADHIKARI PRAKASH D. NAIK, JJ. Mr. Prakash Shah with Mr. Jas Sanghvi i/by PDS Legal for the Appellants. Ms. P.S. Cardozo with Ms Ruju R. Thakker for the Respondent. ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J. ): 1. By this appeal, the assessee challenges an order passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder CSH 2207 of the Central Excise Tariff Act, 1985 and is exempted from payment of excise duty. 7. The appellants have specifically urged that they followed the procedure laid down under the erstwhile Rule 6(3)(a) of the CENVAT Credit Rules, 2004. As per this Rule, a manufacturer engaged in the manufacture of goods falling under Chapter Heading 2207 of the Central Excise Tariff Act, 1985 was required to pay an amount equivalent to the CENVAT credit attributable to inputs used in the manufacture of exempted final products. Bearing in mind the nature of the operation and the manufacturing process, the appellants stated that it was not feasible to maintain separate accounts for receipt, consumption and inventory of molasses for manufacture of dutiable and exempted goods in accordance with the erstwhile Rule 6 of the CENVAT Credit Rules. 8. That is how they reversed the CENVAT credit equivalent to the duty paid on molasses used in the manufacture of exempted goods. They relied upon a Notification dated 1 3 2008, pursuant to which an amendment was brought to Rule 6(3) of the CENVAT Credit Rules. After setting out as to how this amendment has impacted the availment of CENVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the exempted products. Therefore, it is requested that the amount may be permitted to be credited to the CENVAT account. A personal hearing may be granted before taking any decision on the issue. 10. However, they were served with a Show Cause Notice dated 24 5 2010 proposing to reject this refund claim. A reply was claimed to be filed in which also a specific plea was raised by the assessee that they were required to pay only an amount equivalent to 10% / 15%, as the case may be, of the value of the exempted goods during the period April, 2009 to September, 2009. However, by mistake, they have followed the procedure prevailing prior to 1 4 2008 and reversed credit equivalent to the amount of credit taken on molasses as per Rule 6(3)(a) of the CENVAT Credit Rules, 2004, then prevailing. 11. That is how the principle of unjust enrichment is inapplicable. 12. The order in original passed on 16 7 2010 confirmed this Show Cause Notice. The finding in that order in original is specific and the Assistant Commissioner holds that as per Rule (3A) of the CCR, 2004, if the assessee opts to pay an amount equivalent to the CENVAT attributable to input, they should intimate to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 1 to Rule 6(3), the order of the Adjudicating Authority was maintained. 16. Aggrieved by both orders, an appeal was taken to the CESTAT in which as well there is a specific ground of appeal and to be found as grounds A.3, A.4, A.5 and insofar as the option is concerned, ground A.6 at pages 103 104 reads as under: A.6 Thus, in order to follow the option under Rule 6(3) (ii), an assessee has to mandatorily comply with the prescribed procedure, without which the said option cannot be exercised. In the present case, the Appellant never intended to exercise option under Rule 6(3)(ii) and therefore did not follow any of the prescribed procedures/conditions. In view of the same, the Commissioner (Appeals)'s contention that the Appellant has followed Rule 6(3)(ii) is not correct. The facts remain that the Appellant intended to follow Rule 6(3)(i) with effect from 01/04/2008 for which no intimation is required but by mistake reversed credit following the earlier provisions, leading to excess reversal. 17. The finding of the Appellate Authority was referred in grounds A.7 and A.8 and it was argued that the assessee had even assuming without admitting that the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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