TMI Blog2019 (4) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... ered so by the Commissioner. Appeal allowed - decided in favor of appellant. - Appeal No. E/266/2010 - Order No. FO/77179/2018 - Dated:- 17-9-2018 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Dr. S. Chakrabarty, Sr. Advocate for the Appellant (s) Shri A. Roy, Suptd. (A. R.) for the Revenue ORDER PER SHRI P. K. CHOUDHARY The instant appeal has been preferred by M/S Birla Tyres against the Order-in-Original No. CCE/BBSR-I/61/2010 dated 25.01.2010 passed by the Commissioner, Central Excise, Customs and Service Tax, Bhubaneswar-I Commissionerate confirming Central Excise Duty demand of ₹ 19,17,44,316/- and ₹ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AED accrued earlier (prior to 01.03.2003) can be used for payment of BED as well as AED (GSI). (iv). As on 1.3.2003 the appellant had, out of the total accumulated AED credit, a sum of ₹ 19,17,44,316/- which was earned prior to 1.4.2000. After amendment in 2003 the appellant utilized the said sum for payment of BED. (v) By Section 88 read with Second Schedule of the Finance (No.2) Act, 2004, Rule 3(6)(b) of Cenvat Credit Rules, 2002 was, however, amended with retrospective effect so as to provide that credit of AED paid in terms of the 1957 Act can be utilized for payment of cenvat and special excise duty on final product only when AED was paid on or after April 1, 2000. (vi) By Section 124 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g before the jurisdictional Assistant Commissioner. (ix) By a letter dated February 28, 2008, the appellant informed the Commissioner of Central Excise about its decision to make payment of the AED demand of ₹ 7.98 crores in the manner proposed in the said letter and thereafter paid the said disputed duty demand of AED by utilising the accumulated cenvat credit of ₹ 19,17,44,316/-. (x) On November 17, 2008 a show cause notice was issued to the appellant alleging wrong availment of ineligible cenvat credit of ₹ 19,17,44,316/- during July, 2006 to June 2008 and wrong utilisation therefrom of a sum of ₹ 7,97,82,109/- for payment of AED (GSI) on dipped nylon tyre cord fabrics removed during Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit of the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and paid on or after the 1st day of April, 2000, may be utilized towards payment of duty of excise leviable under the First Schedule or the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) As per these provisions, the appellants were barred from using the accumulated AED(GSI) credit earned on procurement of tyre cord fabrics prior to 1-4-2000. As on 1-3-2003, the assessee had a total credit of about ₹ 32,78,21,329/-, out of which an amount of ₹ 20,49,01,087/- had been earned prior to 1-4-2000. Had the Rule 3(6)(b) of C.C.R. not been amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit had been legitimately earned by the assessee on procurement of inputs on payment of duty and used for payment of duty following the amendment of Cenvat Credit Rules under Budget 2003. Vide Circular No. 7/16/2003-C.X., dated 6-303, the CBEC had also clarified that it was considered appropriate not to put any cap on the use of the AED(GSI)credit accruing prior to 1-3-2003. In terms of the provisions enacted in Finance Act, 2004 the debits were held not amounting to payment of duty and the assessee was required to meet the same obligation by payment from PLA. In the instant case, the debits were held to be of no consequence when the assessee was required to pay duty initially discharged using AED(GSI) credit. Therefore, the credit needed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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