TMI Blog2023 (7) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... ds? HELD THAT:- The Tribunal after following the decision in the BHARAT ALUMINIUM CO. LTD. VERSUS COMMISSIONER OF C. EX., RAIPUR [ 2017 (4) TMI 276 - CESTAT NEW DELHI] , the decision in M/S. KEI INDUSTRIES LTD., N HASHMI VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2016 (12) TMI 532 - CESTAT NEW DELHI] held that duty demanded on intermediate products cannot sustain. It is not in dispute that the clearances were made to Mega Power Projects under International Competitive Bidding. Following the decision, it is held that the demand confirmed by impugned orders in Appeal Nos.E/40280-40282/2016 cannot sustain and requires to be set aside. Appeal allowed. - HON BLE MS. SULEKHA BEEVI C. S. , MEMBER ( JUDICIAL ) HON BLE MR. VASA SESHAGIRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of the final products. It appeared to the department that the benefit of Notification 67/95-CE dt. 16.03.1995 is not available to the appellants as the final products are exempted from the whole of duty of excise. Show cause notice was issued for the different periods proposing to demand duty along with interest and also for imposing penalties. After due process of law, the original authority confirmed the duty, interest and imposed penalty. On appeal, Commissioner (Appeals) upheld the same. Appeal Nos.E/42080-42082/2016 are filed by appellant against such orders. 2. The appellant had availed credit of the duty paid pursuant to the confirmation of demand by the original authority. The department was of the view that, the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Software Technology Park, or (v) under notification No.108/95-Central Excise dated the 28th August, 2995 or (vi) by a manufacturers of dutiable and exempted final products, after discharging the obligation prescribed in rule 6 of the CENVAT Credit Rules, 2001. 4. Rule 6 of CCR 2004 broadly covers the obligation of a manufacturer who is manufacturing both dutiable and exempted goods or providing taxable as well as exempted services and at the same time uses or consumes the common inputs and input services. The notification 67/95-CE dated 1.6.3.95 provides for exemption of goods manufactured in factory and used within the factory in relation to the manufacture of final products. However the proviso in the notification provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Bharat Aluminium Co. Ltd. Vs CCE Raipur - 2017 (345) ELT 685 (Tri.-Del.), Thermo Cables Ltd. Vs CCE Hyderabad - 2012 (202) ELT 412 (Tri.-Bang.) and Kei Industries Ltd. Vs CCE Alwar - 2017 (357) ELT 1230 (Tri.-Del.). 7. With regard to denial of cenvat credit for the period July 2015 (Appal E/40485/2018), it is submitted by the Ld. Consultant that pursuant to the OIO dated 28.7.2015 passed by the adjudicating authority confirming the duty demand, the appellant had paid the duty in regard to the intermediate products. The appellant being eligible for credit had availed credit of the duty so paid. Show cause notice has been issued proposing to deny the credit and to demand and recover the amount holding that since the amount of duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved without payment of duty are either (i) cleared to a unit in a special economic zone; or to a developer of a special economic zone for their authorized operations; or (ii) cleared to a hundred per cent, export-oriented undertaking; or (iii) cleared to a unit in an Electronic Hardware Technology Park or Software Technology Park; or (iv) supplied to the United Nations or an international organization for their official use or supplied to projects funded by them, on which exemption of duty is available under notification of the Government of India in the Ministry of Finance (Department of Revenue) No.108/95-Central Excise, dated the 28th August, 1995 number G.S.R. 602 (E) dated the 28th August, 199 or (v) cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Appeal E/40485/2018 is denial of cenvat credit for the period July 2015. The appellant had availed credit based on the supplementary invoices issued in a case where duty is paid on the basis of a demand invoking the extended period. Pursuant to confirmation of demand by the adjudicating authority, the appellant had paid Rs.39,85,735/- and availed the credit of the same. The notice has proposed to deny credit in terms of rule 9 (1) (b) of CCR 2004. As we have already set aside the duty demand on the intermediate products the duty, if any. paid would be eligible for credit and the bar under Rule 9 (1) (b) of CCR, 2004 would not be applicable. The credit becomes eligible. The impugned order in E/40485/2018 is therefore set aside. 13. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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