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2019 (8) TMI 482

..... he jurisdictional officers of the recipient assessees can dispute the assessment of duty and say that less duty was payable or no duty was payable and on that ground deny cenvat credit to the recipient? - HELD THAT:- With respect to jurisdiction, the officers at the recipient end have no jurisdiction of the assessment done by the supplier-manufacturer. In case they did have the jurisdiction over the supplier-manufacturer, a notice should have been issued to such supplier-manufacturer who is alleged to have wrongly assessed and paid excise duty. By no stretch of imagination can the recipient of cenvat invoices along with the goods be expected to understand or anticipate how much duty was actually to be paid by the supplier and take credit ac .....

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..... eged in the SCNs that aforesaid exemption notification at Sl.No.90 is unconditional as far as clearances upto quantity not exceeding 3500 MTs in a financial year is concerned and that the suppliers of the paper board / kraft paper board were therefore not liable to pay Central Excise duty at all and therefore should not have paid Central Excise duty. However, they paid the same amount as representing Central Excise duty as per Sl.No.91 of the aforesaid exemption notification and the appellants as recipients of these invoices have claimed cenvat credit of this amount. It is the position of the department that since Central Excise duty is not payable at all, the amount which has been paid by the suppliers cannot be treated as Central Excise d .....

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..... uthorities. 7. We find that the question to be answered in these cases is when duty has been paid by the supplier at a particular rate availing a particular exemption notification and also invoices have been issued accordingly, whether the jurisdictional officers of the recipient assessees can dispute the assessment of duty and say that less duty was payable or no duty was payable and on that ground deny cenvat credit to the recipient. This issue has been settled by the Hon ble Apex Court in the case of MDS - 2008 (229) ELT 485 (SC), paras 7-9 of which are reproduced below : 7. The Tribunal has come to the conclusion that in fact there was no loss of revenue. It accepted the appeal by recording the following reasons : Reasons given by the a .....

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..... ers at the recipient end have no jurisdiction of the assessment done by the supplier-manufacturer. In case they did have the jurisdiction over the supplier-manufacturer, a notice should have been issued to such supplier-manufacturer who is alleged to have wrongly assessed and paid excise duty. By no stretch of imagination can the recipient of cenvat invoices along with the goods be expected to understand or anticipate how much duty was actually to be paid by the supplier and take credit accordingly. A plain reading of the CCR 2004 also provides for credit of duty paid and not credit of duty that should have been paid. Therefore, there is no scope for the credit to be altered from the amount of excise duty which has been paid as shown in the .....

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