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TMI Blog2008 (3) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... g under Chapter 29 of Central Excise Tariff Act, 1985, and is manufacturing goods on job work basis for Cipla Ltd. by availing Modvat credit of specified duties paid on inputs supplied by Cipla Ltd.; that on finalisation of provisional assessment, duty initially paid by them in certain cases proved to be paid in excess; that under the above circumstances the appellant was issued with Show Cause Notice dated 5-4-2006 directing them to show cause as to why (i) Cenvat credit of Rs. 1,66,098/- should not be denied and recovered under Rule 12 of the Central Excise Rules, 2001/2002 (hereinafter referred to as the Rules) read with proviso to Section 11A(1) of Central Excise Act, 1944 (ii) Interest under Rule 12 of the Rules read with Section 11AB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified duty paying document; or (f) Where the manufacturer of input has received refund of duty paid on input, from the Central Excise department; (ii) that the department has not sanctioned refund of duty alleged to have been paid on the goods manufactured and cleared by Cipla to the appellant; (iii) that the appellant is entitled to avail credit of duty paid on the goods received as inputs as specified in the duty paying documents; (iv) that the inputs cannot be reassessed to deny credit to the manufacturer of final product; (v) that the manufacturer has absolute right to take credit of whatever duty paid on the inputs without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urkumbh Range was present. During the hearing he reiterated the submissions made in the appeal memorandum. 4. I have gone through the case records carefully. After waiving the pre-deposit I proceed to take the main appeal itself for decision. The issue to be decided in the appeal is whether is it correct to deny Cenvat credit amount of Rs. 1,66,098/- to the appellant. The adjudicating authority has held that if at the stage of final assessment duty paid/duty payable become less, then the Cenvat availment, to the extent of credit attributable on the excess value should be reversed as this extra amount payable on the excess value would not constitute duty and therefore not eligible for availment of Cenvat credit to the user factory. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment at the receiver end. The appellant relied on the decision in the case of Kerala State Electronic Corporation v. CCE [1996 (84) E.L.T. 44 (T), the relevant portion of which is reproduced below : "...Modvat Scheme is a self contained code and it does not confer any power on the authority having jurisdiction over a manufacturing unit to reassess duty on the inputs received for the purpose of Modvat credit. Even in cases there is any short or excess collection of duty on the inputs, the assessees are entitled to credit as specified in the duty paying documents. If the duty paid on the inputs is found to be short or in excess of what is payable under the law the resort can be had at the suppliers end under the provisions of Section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them and therefore the demand is barred by limitation. According to Rule 12 of the Rules extended period can be invoked where Cenvat credit has been taken wrongly or utilized wrongly or has been erroneously refunded and the same is the case in terms of Section 11A also. But in the instant case the appellant claims that they have taken credit based on the duty paid by Cipla Ltd. and the said duty paid has been retained by the Government and no part of the same has been refunded to Cipla Ltd. Under the above situation, the appellant had bona fide belief that whatever duty paid by Cipla Ltd. while clearing the goods represent the Excise duty paid and since the said goods were received and used by the appellant the entire duty paid is avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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