TMI Blog2019 (10) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11D of the Central Excise Act, 1944. In fact, invoking Section 11D(1A) of the Central Excise Act, 1944 in the facts and circumstances of the case is not justified when the appellants have collected only the amount of CENVAT admittedly debited, and the said amount is not retained by the appellant. Further, by following the ratio of the decisions in the case of M/S LAMICOAT INTERNATIONAL PVT. LTD., SHRI LOK NATH PRASAD GUPTA, DIRECTOR, SHRI OM PRAKASH GUPTA, DIRECTOR, SHRI DIPANKAR GHOSH, MANAGER VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [ 2015 (9) TMI 679 - CESTAT NEW DELHI] and in the case of COMMISSIONER OF CENTRAL EXCISE, BHOPAL VERSUS SS. CROP CARE LTD. [ 2010 (4) TMI 932 - CESTAT NEW DELHI] , it is held that invoking Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit has been availed. The appellant was using the CENVAT availed Zinc for galvanization for both dutiable finished goods as well as exempted job work activity. It was observed that the appellants were availing CENVAT credit on entire Zinc purchased but had not maintained separate accounts. Therefore, it appeared that the CENVAT credit availed by the appellant on the input Zinc used in exempted job work activity needs to be reversed under Rule 6 of the CENVAT Credit Rules, 2004 without collecting the reversed credit from their job work suppliers. The appellants however raised invoices for job work charges as well as Excise Duty Debited representing the amount of proportionate CENVAT Credit on input zinc used in galvanization in j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944. Penalty of ₹ 5,000/- was also imposed on the appellant under Rule 27 of the Central Excise Rules, 2002. Aggrieved by the said order, appellant filed appeal before the Commissioner (A), who rejected the same. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the binding judicial precedent. He further submitted that the Commissioner (A) relying on the judgment of the Larger Bench of the Tribunal in the case of Sterlite Industries (I) Ltd. vs. CCE, Pune: 2005 (183) ELT 353 (Tri.-LB) which was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further argued that the impugned order concludes in para 12 that the assessee has paid the said amount as duty on inputs used for job work and collected the same from the principal manufacturers with the description excise duty collected and the said collected amount remains unpaid and is recoverable in terms of Section 11D(1A) of the Central Excise Act, 1944. To counter this, he submitted that this finding is not tenable in view of the fact that the appellant has collected the duty from the principals and reversed the same in their CENVAT account at the end of each month. He also submitted that the show-cause notice and the impugned order clearly establishes that the amount equal to CENVAT on zinc collected from the principal manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation also, the learned counsel submitted that the entire demand is barred by limitation because the show-cause notice was issued on 6.12.2013 for the period from April 2009 to October 2012. He further submitted that the appellants have not suppressed any material fact with intent to evade payment of duty and invoice-wise debit of CENVAT is disclosed in ER-1 returns and further, copies of the invoices and ER1 returns are on record. 5. After considering the submissions of both the parties and perusal of the material on record and various decisions relied upon by the appellant, I find that as far as availing the CENVAT credit by the appellant is concerned, the Commissioner (A) relying upon the Larger Bench decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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