TMI Blog2018 (9) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... to put-forth their factual contentions. Thus, unless and until the factual contention is properly considered, conclusion cannot be arrived at - Furthermore, the question as to whether to what extent supplementary invoices would aid the stand of the assessee is also required to be gone into, since admittedly IOCL was a registered dealer of SKO only on 26.10.2005, much after the purchases effected by the assessee which was during the period from 01.02.2005 to 30.10.2005. The entire proceedings required to be redone and the factual matrix has to be considered - the matter is remitted back to the Adjudicating Authority for fresh consideration on the factual position - appeal allowed by way of remand. - C.M.A.No.731 of 2011 - - - Dated:- 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was verified and a reported was called for from IOCL. On the report being submitted, the department found that IOCL was not a registered dealer for SKO and therefore, not entitled to pass Cenvat Credit for SKO and that IOCL had received the SKO from M/s.Chennai Petroleum Corporation Limited (hereinafter referred to as CPCL ) at nil rate of duty by availing the benefit of Notification No.04/2005-CE, dated 01.03.2005, under which the consignments have to be cleared only under the Public Distribution Scheme (hereinafter referred to as PDS ). However, in the instant case, the supplies were made to an Industrial consumer by adopting higher value than the value at which SKO was received from CPCL. 4. Further, the department reported that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, New Delhi, and the assessee also enclosed the revised invoices issued by CPCL. 5. The department opined that once the assessee pays back the duty of excise and that in the instant CENVAT credit availed on SKO, the proper course is to seek refund claim under Section 11B of the Central Excise Act and therefore, taking suo-motu recredit of the duty reversed appears to be incorrect. Accordingly, a show cause notice dated 20.06.2007 was issued calling upon the assessee to show cause as to why the duty amount of ₹ 5,80,618/- taken in recredit suo-motu by them should not be demanded under Rule 14 of the CENVAT Credit Rules, 2004, and why the penalty should not be imposed on them under Rule 15 of the CENVAT Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the issue raised in this appeal is covered by the said decision. 8. Learned counsel for the Revenue pointed out that the decision in M/s.ICMC Corporation Limited (cited supra) will not apply to the facts of the instant case, as the crucial question is whether the assessee was entitled to credit at the first instance. Learned counsel explaining the nature of transaction stated that at the relevant time, the IOCL was not a registered dealer of SKO and could not have taken the credit and therefore, the question of assessee availing credit does not arise and therefore, at the first instance, if the assessee is not entitled for availing credit, the question of reversal and once again suo-motu taking recredit does not arise. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling benefit of Notification No.04/05, dated 01.03.2005 under which the consignments have to be cleared only under public distribution system, (2) IOCL have passed on higher credit than what is eligible.......... 12. Thus, the Commissioner (Appeals) misinterpreted the order passed by the Original Authority by stating that the assessee's eligibility to credit was never disputed. In fact, that is the very core of the dispute. Hence, the order passed by the Commissioner (Appeals) to that extent has to be necessarily held to be erroneous, though not the ultimate conclusion arrived at by the Commissioner (Appeals) in upholding the order of the Adjudicating Authority. 13. Unfortunately, before the Tribunal, the parties appears to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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