9911796707
TMI Blog2006 (11) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department insisted that they are excisable and compelled the appellants to pay Central Excise duty. Therefore the appellants started paying duty on the impugned products. While discharging the duty liability, they availed Modvat/Cenvat credit on the inputs. The appellants challenged the levy of Central Excise duty on the Cable Jointing Kits before the Hon ble High Court of Andhra Pradesh. The High Court had held that no manufacture was involved as the Cable Jointing Kit is only a conglomeration of various items. In view of the decision of the High Court, the appellants filed refund claims. Initially the Assistant Commissioner in his order dated 6-5-98 rejected the refund claim. The appellant approached the Commissioner (Appeals). The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the propositions so made. 5. In view of our findings and seeing there are no other issues raised in the appeal before us, we would modify the Commissioner's orders by directing that the RG 23 Part II records should be ordered to be credited with the debits of duty made in the RG 23A Registers, thereafter the Department is at liberty to take such action as permissible under law to deny the availment of Modvat claim. This appeal is therefore disposed off in the above terms. In accordance with the decision of the Tribunal, the appellants restored the credit into their RG 23 Part II Registers. The Department issued show cause notice to the appellants alleging that the appellants contravened the provisions of Rule 57C inasmuch as they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cable jointing kits. (ii) What was done by the appellants was in consonance with the Departmental instructions and therefore the payment of amounts as representing duty although ought not have been made, had to be made as there was no other choice for the appellants. (iii) The learned authority ought to have noticed that the notice was issued after 8 years and hence for all reasons hit by limitation. (iv) The learned authority also ought to have noticed that since provisions of Rule 57C cannot be pressed into service the show cause notice proposing to recover the impugned amount is incorrect and improper since no amounts are due under the Central Excise Act and if any amounts are collected whether through PLA or through Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no warrant for the learned Commissioner to say that the appellants had committed breach of the Modvat provisions. 4. The learned JDR pointed out that once it is held that the cable jointing kits are not excisable, the appellants are not entitled for the input credit and there is nothing wrong in the order of the Commissioner which only reiterates the legal position in the matter. 5. We have gone through the records of the case carefully. The appellant was compelled by the Revenue to pay Central Excise duty on the cable jointing kits though they contested the issue. While paying the Central Excise duty, they had availed Modvat credit. Therefore we cannot say that the appellants had violated any provisions of the Central Excise Act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,05,582/- on the ground that they had availed the above credit for payment of duty. The adjudicating authority has confirmed the proposals in the show cause notice. In the course of hearing, the learned Advocate vociferously argued that the appellants had only carried out the directions of the authority and also the Tribunal and for that, they should not be penalized. It was also pointed out that they had never utilized the credit and the amount of Rs. 1,91,48,485/- is still lying in balance. They took credit only consequent to the CESTAT order. Therefore there is no illegality in taking credit of the amount. As regards the recovery of the credit of Rs. 51,05,582/-, it was pointed out that when the Department insisted them to pay duty, they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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