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TMI Blog2009 (6) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... is amount. Hence, it appeared that the Cenvat credit accrued by them during the month of November, 2006 cannot be utilized by them for discharge of duty liability on the supplementary invoices raised. Coming to such a conclusion a Show Cause Notice was issued for the demand of differential. The Adjudicating Authority confirmed the differential duty, confirmed the demand. Held that- the impugned order is not sustainable and is liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed with consequential relief, if any. - E/714/2008 - 865/2009 - Dated:- 30-6-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri Vishal Agrawal, Accountant, for the Appellant. Ms. Joy Kumari C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember, 2006 cannot be utilized by them for discharge of duty liability on the supplementary invoices raised. Coming to such a conclusion a Show Cause Notice was issued for the demand of differential duty of Rs. 9,57,41,336/- and imposition of penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act and also for demand of interest. The appellant contested the Show Cause Notice mainly on the ground that the value of the goods cleared to their sister concern was in terms of Rule 8 and subsequently in November, 2006, differential duty was required to be paid as there was an escalation in the value. It is their submission before the authority that in the month of November, 2006, they had sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is her submission that the said differential duty would have been paid by the appellant had they finalized the price structure during the relevant period. It is her submission that during the relevant period, the Cenvat credit available to the appellant was not to the extent of 9.87 crores (approx.) but to the tune of only Rs. 1.15 crores. It is her submission that the adjudicating authority has given the benefit of Rs. 1.15 crores to the appellant. It would be her submission that the proviso to Rule 3(4) clearly mandates as under: "Provided that while paying duty of excise or service tax, as the case may be, the Cenvat credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately through the RG-23A Pat-II. It would be appropriate to reproduce the provision of sub-rule 3(4) of the Cenvat Credit Rules, 2004, which reads here as under:- "Rule 3: Cenvat credit. (4) The Cenvat credit may be utilized for payment of- (a) any duty of excise on any final product; or (b) an amount equal to Cenvat credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the Cenvat credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub-rule (2) of Rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service." Provided that while paying duty of excise or service tax, as the case may be, the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellant, are in respect of the differential duty liable to be paid by them. We find that though supplementary invoice is not defined anywhere in the Central Excise Rules, mention of the same is seen in Cenvat Credit Rules, 2004, more specifically in Rule 9(1)(b). The said Rule 9(1)(b) is reproduced as under:- "Rule 9: Documents and accounts. (1)(b): a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e' it becomes clear that the same means the price actually paid or payable for the goods, when sold; thereafter, the definition includes, in addition to the amount charged a price, any amount that the buyer is liable to pay to the assessee, whether payable at the time of sale or at any other time, by reason of sale, or in connection with sale. Thus, it becomes apparent that the value, on which duty is chargeable, has to be the price actually paid or payable for the goods. Even the inclusive definition requires that the additional amount which the buyer is liable to pay to the assessee is by reason of or in connection with the sale whether payable at the time of sale or at any other time. The emphasis is on the factum of the buyer being liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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