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TMI Blog2009 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are not eligible for the Cenvat credit on both accounts and accordingly an amount of Rs.43,642/- (Rupees forty-three thousand six hundred and forty-two only) has been demanded and a penalty of Rs.10,000/- (Rupees ten thousand only) has also been imposed. 2. No one has appeared on behalf of the appellants and heard the learned JDR on behalf of the Revenue. 3. As regards Cenvat credit of service tax paid on outward transportation service, the Larger Bench of this Tribunal in ABB Ltd. & Others v. CCE & Service Tax, Bangalore reported in 2009 (15) S.T.R. 23 (Tribunal-LB) = 2009 (92) RLT 665 (CESTAT-LB) has held that such credit is admissible. Therefore the issue is no longer res integra and accordingly appeal in respect of this portion has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the appellant. Hence, question of reversal of Cenvat credit and payment of duty by M/s. Mahindra & Mahindra does not arise. Similarly, M/.s Mahindra & Mahindra Limited, Nagpur has also not availed cenvat credit of basic excise duty but had only availed cenvat credit of Education Cess. A certificate to this effect received by M/s. Mahindra and Mahindra Limited, Nagpur is enclosed herewith and marked as EXHIBIT-H. So, at the time of returning the goods they have reversed/paid Education Cess of which they had taken cenvat credit but have not paid/reversed any basis duty. In these circumstances, it is undisputed fact that the said duty paying documents, the appellant has taken proportionate cenvat credit. It is a settled law that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. Explanation.- The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods. (3) If there is difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, reconditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the Commissioner." 6. The rule a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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