9911796707
TMI Blog2010 (4) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... entries during period of exemption due to bonafide mistake subsequently rectified. SSI exemption not to be denied. - E/2185/2009 - 261/2010-EX(PB) - Dated:- 6-4-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri L.P. Asthana, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per; Rakesh Kumar, Member (T)]. - The facts leading to this appeal along with stay application are, in brief, as under: 1.1 The Appellants are engaged in the manufacture of M.S. Bars chargeable to Central Excise Duty under heading 7214 of the Central Excise Tariff Act held Central Excise Licence. During the period of dispute i.e. 2006-07, they were availing the benefit of SSI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 16,46,041/- alongwith interest on it at the applicable rate, in respect of their clearances from 1-4-06 to 15-6-06; (b) Imposition of penalty on the appellant under Section 11AC of Central Excise Act, 1944 as well as under Rule 25 of Central Excise Rules, 2002; and (c) Confiscation of the goods under Rule 25 of the Central Excise Rules, 2002 removed without payment of duty during the period from 1-4-06 to 15-6-06. 1.2 The show cause notice was adjudicated by the Jt. Commissioner vide order-in-original No. 90/JC/CEX/IND/2008-09 dated 25-8-08 by which - (a) the entire duty demand as made in the show cause notice was confirmed alongwith interest on it at the applicable rate as per the provisions of Section 1IAB; (b) penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t till the same is disposed off by the Tribunal. 1.5 Though today the matter was listed only for stay, in view of the directions of the Hon'ble High Court in its order dt. 16-11-09, the main appeal itself was taken up for final disposal. 2. Heard both the side. 2.1 Shri L.P. Asthana, Advocate, learned Counsel for the Appellant pleaded that during the period from 14-06 to 15-6-06 when the Appellants were availing of SSI exemption and were not supposed to avail any input duty Cenvat credit, due to mistake of the Appellant's• clerk, the credit entries regarding the Cenvat credit on the inputs received were made but the Cenvat credit was not utilized; that total credit taken during the period from 1-4-06 to 15-6-06 was Ks. 9,34 that on 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit and input duty credit though initially taken was reversed, it would amount to not taking the credit and hence the benefit of exemption under Notification No. 4/97-CE. cannot be denied and that in view of this, the impugned order is not correct. 2.2 Shri B.L. Soni, learned DR, defended the impugned order reiterating the Commissioner (Appeals)'s findings and emphasized that the SSI exemption is subject to the conditions enumerated in para 2 of the Notification, that as per pan 2(111) of the exemption notification, the exemption is subject to the condition that the manufacturer does not avail the credit of duty of inputs used in the manufacture of specified goods cleared for home consumption and that since in this case, input duty cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 25-8-08 it is seen that the total Cenvat credit taken during the periods from 1-4-06 to 15-6-06 was Rs. 9,34,306/- and when on crossing Rs. one crore limit on 15-6-06, the Appellant started paying duty, they became eligible for credit of the input lying in stock as on 15-6-06, in terms of the provisions of Rule 3(2) of the Cenvat Credit Rules and accordingly, they became entitled for credit of Rs. 8,67,927/-, the Appellant instead of making fresh entry of the credit of Rs. 8,67,927/- only made a debit entry of the excess credit of Rs. 78,026/-. This debit entry cannot be called utilization of wrongly taken credit. We are, therefore, satisfied that input duty credit during the period of exemption had been taken due to mistake and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
