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TMI Blog2010 (9) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t Duty (Basic Excise Duty, i.e. BED) under Section 3 of the Central Excise Act, 1944, it was not liable to duty under Additional Duty of Excise (Goods of CEAC No. Special Importance) Act, 1959. On the other hand, sugar was liable to separate duties under both the Acts mentioned above. 2. The appellants were purchasing sugar from two First Stage Dealers, viz., (1) Rajputana Store Pvt. Ltd., Delhi and (2) Bajaji Sugar Co. Delhi who were issuing invoices to the appellants showing the element of BED paid on sugar sold to the appellants and were not showing any element of AED (Additional Excise Duty) as no AED was leviable on final products for the purpose of taking Cenvat credit. No credit of AED could be taken and utilized by the appellants p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.04.2000 to 09.10.2000. However on 05.07.2005, a show cause notice was issued to the appellants proposing to withdraw the said credit. The appellants filed reply to the said show cause notice and also gave its written submission. Order-in-Original dated 20.10.2005 was passed by the Joint Commissioner confirming the demand of duty of Rs. 9,20,944 and penalty of equal amount was also imposed. The appellants preferred appeal there-against before the CIT(A), which was dismissed. Further appeal was preferred before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') and met the same fate. It is in these circumstances, the instant appeal is filed, which is admitted on the following question of law: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty paying documents as prescribed in the Rule 9 of the Rules. The documents in this case are the dealer's invoice. Admittedly, there is no mention of the payment of GSI in the dealer‟s invoice and, therefore, the Commissioner (Appeals) rightly disallowed the credit. However, I agree with the submission of the ld. Representative that in the instant case, there is no suppression of fact with intent to evade payment of duty and, therefore, imposition of penalty under Section 11AC is not warranted. In view of the above discussion, demand of duty and interest are upheld. Penalty is set aside. The appeal is disposed of in the above terms." 5. Submission of the learned counsel for the appellant is that Rule 9 of the Cenvat Credit Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order. The only question was as to whether the first dealer had passed on this burden to the appellant or not. As noted above, the appellants had produced sufficient evidence to demonstrate that such a burden had been passed on to the appellants. However, none of the Authorities below went into this aspect at all. The case of the appellants for Cenvat credit was rejected only on the ground that the procedure contained in the Rules was not complied with. When we find that there is no such Rules in existence at the relevant time, the claim of the appellants should not have been rejected on the basis of aforesaid Rules. The orders of the Tribunal in the case of Britannia Industries Ltd. (supra), in such circumstances, would clearly be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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