TMI Blog2023 (10) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules, 2004 is no longer res integra. The Tribunal in M/S. SHARDLOW INDIA LTD. VERSUS CCE, CHENNAI II [ 2017 (8) TMI 1162 - CESTAT CHENNAI] has held that In similar case, where the goods were cleared to M/s. Space Centre and M/s. Baba Atomic Research Centre in the case of COMMISSIONER OF CENTRAL EXCISE, THIRUNELVELI VERSUS DCW LTD. [ 2008 (10) TMI 380 - MADRAS HIGH COURT] , the jurisdictional High Court has considered that the said goods cannot fall under the category of exempted goods as provided in Rule 57CC(1) of the erstwhile Central Excise Act, 1944. In M/S. MERCEDES BENZ INDIA (P) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [ 2015 (8) TMI 24 - CESTAT MUMBAI] , the Tribunal held that we do not understand that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 2011 and challenges recovery of ₹ 57,50,058 under section 11A of Central Excise Act, 1944, along with applicable interest under section 11AB of Central Excise Act, 1944 while imposing penalty of like amount under section 11AC of Central Excise Act, 1944 by recourse to two separate options afforded by rule 6 of CENVAT Credit Rules, 2004. The credit directed to be reversed arose from attribution of the impugned taxable services in production of rectified spirit and of kraft paper along with manufacture of sugar , molasses and denatured spirit that are cleared on payment of duty. As far as kraft paper is concerned, clearances were governed by notification no. 4/2006-CE dated 1st March 2006 (at serial no. 90) foregoing le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order has been disproportionate in taking recourse to rule 6 of CENVAT Credit Rules, 2004 and, by reference to the decision of the Tribunal in Tata Technologies Ltd v. Commissioner of Central Excise, Pune-I [2016 (42) STR 290 (Tri-Mumbai)], it was contended that the option vests always, and every time, with the assessee. 4. According to Learned Authorized Representative, it was admitted fact that appellant had not maintained separate books of accounts for dutiable goods and exempt goods thus precluding availability of information for any option other than the one resorted to by the adjudicating authority. Reliance was placed on the decision of the Hon ble High Court of Bombay in RR Paints Pvt Ltd v. Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rule 2 of CENVAT Credit Rules, 2004 and Explanation 2. - Value of non-excisable goods for the purposes of this rule, shall be the invoice value and where such invoice value is not available, such value shall be determined by using reasonable means consistent with the principles of valuation contained in the Excise Act and the rules made thereunder. below rule 6(1) of CENVAT Credit Rules, 2004 make it abundantly clear that proportionate credit availed on services used in common is to be reversed. The appellant has not done so and this, combined with absence of reporting of production of rectified spirit , brings the full force of the decision of the Hon ble Supreme Court in re RR Paints Pvt Ltd to discard the plea of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment of 5% will automatically be applied. Therefore we do not understand that when the appellant have categorically by way of their intimation opted for option provided under sub-rule (3)(ii), how Revenue can insist that option (3)(i) under Rule 6 should be followed by the assessee. and it is not in doubt that any of the options may be chosen by the assessee. We, therefore, restrict the recovery under rule 14 of CENVAT Credit Rules, 2004 to such amount as is computed by the appellant herein. 8. We also find no reason to sustain the penalty imposed under section 11AC of Central Excise Act, 1944 as there is no allegation of evasion of duty otherwise payable on account of non-availability of sufficient credit on clearance of dutia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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