TMI Blog2018 (7) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... enue neutral. Appeal dismissed - decided against Revenue. - Excise Appeal No. 324/2008 - FO/76232/18 - Dated:- 12-6-2018 - Shri P.K. Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri S.S. Chattopadhyay, Supdt. (A.R.) for the Appellant (s) Sri D.K. Dhar, Advocate for the Respondent (s) ORDER Per Shri Bijay Kumar Present appeal has been filed by the Revenue against Order-in- Original No. 06/Denovo/Commissioner/08 dated- 26.03.2008 passed by the Commissioner of Central Excise, Jamshedpur. This order is passed in pursuance of this Tribunal s order No. A-188/Kol/2007 dated-22/02/2007 vide which the Order-in-Original No.34/03 dated-29/05/2003 was remanded to original authority for re-determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been extended to them. 4. Against this backdrop, we have heard the Ld. D.R. who stated that adjudication order passed by Commissioner (Appeal) is not in conformity with the provisions of Modvat rules because no declaration, that is required for availing the Modvat benefit, under erstwhile 57G of Modvat Credit Rule, was filed before the authority. And therefore, the benefit could not have been granted to them. That, even the CESTAT, in case of Star Industries Vs. Commissioner of Customs (Imports), RAIGAD, has held that the Revenue neutrality is not the ground for availing the benefit where there is need of fulfilment of all conditions envisaged in the modvat scheme. Further, the Ld. D.R. has relied the decision of Nitin Spinners Ltd. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax itself. Even the availability of credit itself is subject to various conditions in terms of Cenvat Credit Rules, 2004. The availability of such credit cannot be presumed in order to contest the duty liability of the appellant-assessee, which is in terms of applicable provisions of the Act and the Notification thereunder. We have perused case laws relied upon by the appellant-assessee. No general law has been laid down in these decisions to support the case of the appellant-assessee. The decisions are on the facts applicable to the said case. 5. On the other hand, the Ld. Advocate appearing on behalf of the respondent assessee has stated that the Commissioner has done the adjudication as per the remand order, wherein direction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of Modvat credit during the disputed period, or not. The Adjudicating authority has examined the relevant records and found that the respondent assessee had produced the relevant records which substantiate beyond the doubt that modvat credit is available to them. Therefore whatever demand had been raised would be set off against the available Modvat credit. Further, after going through the grounds of appeal filed by the Department in appeal memorandum, we find the reviewing authority has relied on the decision in the case of K.V. Rao Vs. Commr. of Central Excise and Customs, Visakhapatnam [2008 (222) ELT 267 (Tri.-Bang.)] stating that though the Tribunal has allowed the benefit of Modvat credit and held that consequent to which enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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