TMI Blog2020 (3) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... imported wheel sets in respect of both the CVD and SAD paid by them. It is not in dispute that against the same Bills of Entry some wheel sets were cleared on payment of duties and same were cleared under DEEC without payment of duty and it is not possible to separate duty paid goods from the goods cleared under DEEC. Therefore, the only way to decide whether the goods which were transferred to the sister unit were duty paid or duty free is based on the records of the assessee and how they treated the transferred goods. It is not in dispute that the appellant assessee has treated the transferred goods as duty paid and also reversed some portion of the CENVAT Credit so availed. The amount of CENVAT Credit so reversed has been taken as cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HON BLE SHRI P.V. SUBBA RAO, MEMBER(TECHNICAL) Shri Pulak Saha, C.A. And Ms. Dimple Jogani, C.A. for the Appellant assessee Shri H.S. Abedin, Authorized Representative for Department. ORDER PER P.V. SUBBA RAO : Appeal No. E521/2010 is filed by the appellant assessee. while Appeal No. E 624/2010 has been filed by the revenue against the same impugned Order. Hence, both Appeals are being taken up together for disposal. Learned Counsel for the Appellant Assessee submits that the name of the Company has been changed from M/s. Texmaco Ltd. to M/s. Texmaco Rail and Engineering Ltd. as per the Order of the Hon ble High Court Calcutta dated 6th September 2010. Accordingly, we direct that the name of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Commissioner, by the impugned Order, confirmed the demand along with interest as proposed. He also imposed a penalty of equal amount under Rule 15 (2) of CENVAT Credit Rules 2004 read with Section 11AC of the Central Excise Act 1944. The Assessee is aggreieved by this Order confirming the demand and also imposing the penalty. Revenue is aggrieved by the fact that no penalty has been imposed under Rule 15 (1) of the CENVAT Credit Rules 2004. 6. Learned Counsel for Assessee Appellant contests the demand on the following grounds :- (i) Against the same Bills of Entry which are subject of dispute in the present appeals, they had imported wheel sets both on payment of duty and without payment of duty under DEEC Licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 274 326 600 82 82 3. 342281 dated 16/05/2007 488 146 634 56 56 4. 381155 dated 12/12/2007 680 800 1480 370 370 TOTAL 1867 1597 3464 833 830 (ii) Even if it is held that they were required to reverse the CENVAT Credit, it cannot be alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have inventorised the imported wheel sets and which wheel sets have been transferred to their sister unit i.e. whether duty paid and CENVAT availed wheel sets were transferred or duty free DEEC cleared wheel sets were transferred, he submits that the two types of wheel sets cannot be distinguished. They maintain of bill of entry-wise stocks of the wheel sets but cannot say on which wheel sets duty was paid and on which it was not against the same Bill of Entry. 7. Learned D.R. reiterates the grounds of appeal as far as the imposition of penalty under Rule 15 (1) is concerned. As far as the substantive question of reversal of CENVAT Credit availed on SAD is concerned, he would submit that it is not the revenue which has decided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by them as duty paid for the purpose of reversing CENVANT Credit of CVD must be treated as duty free for the purpose of reversing SAD. Just as a man cannot be both married and unmarried at the same time, the goods in question cannot be both duty paid and duty free at the same time. Once the Assessee has reckoned the goods as a duty paid, they must reverse the entire amount of CENVAT Credit availed on them. Therefore, on merits, we do not find any force in the argument of the assessee. They must reverse the CENVAT Credit availed on SAD in respect of the transferred goods. Since they have not done so, the demand, along with the interest on this ground has been correctly confirmed by the original authority in the impugned order. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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