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TMI Blog2023 (12) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... ully exempted in terms of Notification No. 06/2006-CE dated 01/03/2006. Subsequently, with effect from 01/03/2011, the supplies to Railways were brought under the concessional rate of 1%/2% Excise Duty subject to the condition that no Cenvat Credit is availed by them. The Department issued Show Cause Notice on the ground that the Appellants have availed Cenvat Credit both for dutiable and exempted goods. For the period, 2009-10 to 28/02/2011, the demand quantification was done based on @ 6%/8% of the value of the exempted goods cleared by them. For this period, demand of Rs. 35,39,80,370/- was made. For the period, from 01/03/2011 to May 2013, on the ground that separate Cenvat Credit records and status were not maintained, the demand was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any amount is still to be reversed they are ready to reverse the same along with interest. However, he submits that as per their calculation while the Cenvat Credit taken on common inputs comes to Rs. 54,46,566/- in the normal course they would have been eligible for credit of Rs. 96,77,463/- which means that they have foregone about Rs.42 lakhs of Cenvat Credit which would have been eligible to them. 4. He further takes us through the Verification Report submitted by the Divisional Superintendent of Central Excise after verification of all their records who has submitted his Report dated 18/06/2018 (Page 210-217 of the Appeal Paper Book), wherein even as per his calculation, the Cenvat Credit forgone by the Appellant on account of exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. UOI-2004 (174) ELT 422 (All. H.C) has held as under:- 17. The question as to whether manufacturer can be treated as not having taken credit on the inputs used in the manufacture of final product, even though it was originally taken but subsequently reversed, has been decided by a five Member Bench of the Tribunal in the case of Franco Italian Company Pvt. v. CCE, 2000 (120) E.L.T. 792. The aforesaid five members Bench of the Tribunal after taking into account the ratio laid down by the Supreme Court in the case of Chandrapur Magnet Wire (P) Ltd. v. CC, Nagpur, 1996 (81) E.L.T. 3 has held as under :- "6. Drawing similar analogy we consider that subject to the reversal of Modvat credit taken with regard to the inputs which were ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts utilised in the manufacture of final exempted product under Rule 57-A. In other words the claim of exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of duty paid on the inputs used in manufacture of these goods." 20. The Tribunal while passing the impugned order dated 1-10-2003 instead of following the principles of law and the ratio of the decision of the Supreme Court in Chandrapur Magnet Wires Ltd. (supra) and also the decision of the larger five Members Bench of the Tribunal in the case of Franco Italian Company (P) Limited (supra) and other larger bench decision in the case of ICON Pharma and Surgical (P) Ltd. - 2000 (40) RLT 918 has held that reversal on inputs credit should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in line with the ratio of the Supreme Court judgment laid down in Chandrapur Magnet Wires Co. (supra). 26. Thus all the Division Benches of the Tribunal have been following the larger Bench decision and have taken a consistent view that reversal of the credit can be made even subsequent to the clearance of the final products. The impugned order dated 1-10-2003 appears to be the only order which is contrary to the consistent view taken so far. 31. In view of the above decision the writ petition is allowed and the demand of duty and penalty created by order dated 30-10-2001 and confirmed by the Tribunal is set aside. [Emphasis supplied]. 9. This Tribunal in the case of M/s Philips Carbon Black Ltd. Vs. CCE & ST, Durgapur, vide Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted turnover etc. are required to be considered as per the CCR Rules, 2004. 12. The Appellant has claimed that as per their calculation, they have forgone Cenvat of nearly Rs.42 Lakhs more than what was required to be forgone on the common inputs. We make it clear that if it is found after verification by the Adjudicating Authority that if any Cenvat Credit is still required to be reversed, the same should be paid by the Appellant along with interest. On the other hand, if it is found that they were eligible for higher Cenvat Credit on account of common inputs, no refund would accrue to the Appellant, since they have not followed the correct procedure earlier but the same is being leniently viewed considering the cited case laws. All th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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