TMI Blog2005 (9) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and the additional duty equal to Excise duty under Section 3 of Customs Tariff Act, 1975. On receipt of the duty paid S.S. melting scrap in their factory, they were taking Cenvat credit of duty paid on the scrap. Subsequently, instead of using the said scrap as an input in their factory, the same was being sold by them to M/s. Viraj Alloys Ltd. In terms of the provisions of Rule 3(4) of the Cenvat Credit Rules, 2002, the inputs on which an assessee has taken the credit can be cleared by the factory as such, on payment of duty equal to the credit availed in respect of such inputs. However, while clearing the inputs as such, the appellants paid excess duty on the ground that they had incurred certain expenses in the clearance, transport, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presented by Shri Lajja Ram, ld. Advocate for the appellants and Shri N.V.B. Nair ld. JDR for the revenue, I find that a very short issue is involved in the present appeal. 5. The relevant provisions which were in existence was sub Rule 4(3) of Cenvat Credit Rules, after its substitution with effect from 1-3-2003 vide Notification No. 13/2003-C.E. (N.T.). For better appreciation, the same is being re-produced below:- "(4) When inputs or capital goods, on which Cenvat credit has been taken are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. 7. However, such Modvat credit cannot be considered as excess duty recovered from the customers, so as to apply the provisions of Section 11D. The Hon'ble Supreme Court in the case of Raghuvar India Ltd., 2000 (118) E.L.T. 311 (S.C.) has held that the Modvat credit is not duty of excise. The provisions of Section 11D are applicable only in respect of the duty and relate to that collected amount from the customers representing as duty but not deposited with the department. In the instant case, whatever was collected was paid to the revenue. Accordingly 11D provisions are not applicable. However, excess credit paid by the four importer-appellants and availed by the Customer, appellant is required to be reversed by them. On doing so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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