9911796707
TMI Blog2023 (10) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of P&P medicines; during an audit conducted, the Department observed that the appellants have purchased inputs from EOUs and availed full credit of CENVAT, as per the invoices, whereas they are eligible to avail CENVAT Credit as per the formula prescribed under Rule 3 (7)(a) of The CENVAT Credit Rules, 2004. Show cause notice dated 21.04.2011 was issued to the appellants seeking recovery of CENVAT Credit of Rs. 12,69,409/- under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11(A) of Central Excise Act, 1944 along with interest; show cause notice also contained proposal for penalty under Rules 15 and 25 of Central Excise Rules. Additional Commissioner vide order dated 03.05.2012 confirmed the demands raised there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 22/2009 CE dated 7.09.2009, CENVAT Credit equal to CVD portion is available irrespective of the formula; the excess credit alleged to have been availed by the appellants is due to the fact that Notification No. 23/2003 CE dated 31.03.2003 was amended vide Notification No. 10/2008 CE dated 01.03.2008 where concessional right of duty under Sl. No. 2 of Notification No. 23/2003 was made 50% instead of 25%; however, the CENVAT Credit Rule was not amended immediately but was amended with effect from 05.12.2008; therefore the excess credit alleged has been correctly take as per the illegal provision during the period 1.03.2008 to 05.12.2008. She submits that CESTAT Benches at Ahmedabad, Mumbai and Chennai have decided the issue in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (appeals) observes that though the appellants have applied the formula given under Rule 3(7)(a) of the CENVAT Credit Rule, taking into account Tariff Rate of BCD is not correct; CENVAT Credit is to be calculated by taking into account the basic Customs duty leviable and charged. We find that the appellants rely upon Tribunal's orders, by this bench vide Final Order No. A/63649/2018/EX(DB) dated 06.12.2018 and CESTAT Ahmedabad vide final order A/10872-10873/2023 dated 13.04.2023, in their own case. We find that this bench vide order cited above relied upon decision of Tribunal Mumbai Bench in the case of Metaclad Industries (supra) in that case tribunal observed that: 5.3 Now coming to the legal aspect, the expression used in sub-rule (7) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account and restricting the benefit to only one additional duty is not warranted under the strict interpretation principle of statutory interpretation. Further, CENVAT is as beneficial provision for reducing the cascading effect of taxation and if the object of CENVAT has to be subserved, the credit should be made available in respect of both the additional duty of customs. The economic rationale for the same has already been explained in the preceding paragraph. 7. We find that the L/d authorised representative relies on the judgement in the case of Micropure Parental Pvt. Ltd. (supra). The appellants have submitted that this Bench has decided the issue in favour of the appellants themselves. The basic issue that is under dispute is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have taken into account the tariff rate of basic customs duty which is not correct as the CENVAT credit is to be calculated by taking into account the basic customs duty leviable and charged. We find that, to this extent, the order of the learned Commissioner (Appeals) is legally sustainable as it is very clearly given in the formula. Therefore, we are of the considered opinion that the argument of the appellant is not acceptable. 8. Moreover, the genesis of the issue lies in an audit objection. We find that the Department has not brought anything on record to substantiate the allegation of suppression etc. to enable invocation of extended period. Commissioner (Appeals) set aside the penalty and has also not given any specific finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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