TMI Blog2023 (1) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... inished goods was paid even though it attracts nil rate of duty, the cenvat credit cannot be denied - there is no dispute that the appellant have paid the excise duty on the finished goods which is more than the cenvat credit availed on the input used in the said finished goods, therefore, this is clear case of Revenue neutral, for this reason, demand cannot be sustained. This similar issue has been considered by the Hon ble Supreme Court in the case of COMMISSIONER OF C. EX., JAMSHEDPUR VERSUS JAMSHEDPUR BEVERAGES [ 2007 (4) TMI 264 - SC ORDER ], wherein the Hon ble Supreme Court held that excise duty paid and the Modvat credit availed were identical and therefore consequences of payment of excise duty after availing Modvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the department is that since the appellant have cleared the Sulphur Powder which is correctly classifiable under sub-heading No. 2503 0090 which attracts nil rate of duty, the appellant was not entitled for cenvat credit on the inputs used in the manufacture of Sulphur Powder falling under sub-heading No. 2503 0090 of Central Excise Tariff Act-1985. 2. Shri S.J. Vyas, learned counsel appearing on behalf of the appellant submits that the appellant under bonafide belief that the sulphur powder manufactured by them attracts duty under sub-heading no CETH 2503 010 hence availed the cenvat credit and paid the excise duty on the finished goods. Once the excise duty was paid on the finished goods, cenvat credit on the inputs cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order. 4. I have carefully considered the submissions made by both the sides and perused the records. 5. I find that the appellant is not disputing the classification however their contest is that once the duty on the finished goods was paid even though it attracts nil rate of duty, the cenvat credit cannot be denied. I find that there is no dispute that the appellant have paid the excise duty on the finished goods which is more than the cenvat credit availed on the input used in the said finished goods, therefore, this is clear case of Revenue neutral, for this reason, demand cannot be sustained. This similar issue has been considered by the Hon ble Supreme Court in the case of CCE-Jamshedpur vs Jamshedpur Beverages (supra), wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty. In this provision, the duty paid goods is deemed to be input in terms of Cenvat Credit Rules. The said goods can be cleared on payment of duty and the credit availed on the goods received by the assessee is allowed. In the present case also, the appellant have received the duty paid inputs, thereafter processed the same and cleared after processing on payment of duty on the transaction value. This would as permitted in terms of Rule 16 of Central Excise Rules 2000, therefore, the transaction in the present case is squarely covered by the Rule 16 of Rules. For this reason also, the cenvat credit on the input received by the appellant for manufacture of Sulpur Powder cannot be denied. This view is supported by this Tribunal decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the duty has to be paid equal to Cenvat credit availed on receipt of duty paid Input. In the present case, the respondents have taken credit on the duty paid on wire rods and after the process of drawing they have paid duty determined on clearances on the transaction value. Therefore, the entire transaction is squarely covered under the provisions of Rule 16 of CER, 2001. 6. We also observe that the demand is pertaining to the period 29-3. 2000 to 28-5-2004. Therefore, the period from 29-3-2000 to 30-6-2001 is not covered by Rule 16. However, even if Rule 16 was not available, the respondents have taken credit on the input and cleared after the processing of drawing for export. As per this transaction, it is nothing but the availment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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