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TMI Blog2008 (1) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent cleared the goods on payment of concessional rate of duty under small scale exemption notification, which were returned by the buyer as defective goods on payment of higher rate of duty. The Respondent availed the credit of the whole duty paid by the buyer under Rule 16 of Central Excise Rules, 2000. The adjudicating authority denied the credit availed by the Respondent on the ground that the Respondents are entitled to avail the credit which were paid by them at the time of removal of the goods from their factory and imposed penalty. The Commissioner (Appeals) set aside the adjudication order. Hence, the Revenue filed this appeal before the Tribunal. 3. Learned DR on behalf of the Revenue submits that in terms of Rule 3(4) of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilize this credit according to the said rules . [emphasis supplied] 6. Rule 16(1) of the said Rules provides that the assessee shall be entitled to take cenvat credit of the duty paid as if such goods received as inputs under the Cenvat Credit Rules, 2002. In the present case, it is seen that the Respondent availed the credit of the duty paid by the supplier in their central excise invoice which specified under Rule 9 of the Cenvat Credit Rules. The main contention of the learned DR that the supplier paid the excess duty in violation of Rule 3(4) of Cenvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be prevented from taking credit on the ground that the duty paid by the supplier was excessive . 7. In the present case, I find that the supplier paid the higher duty which were duly received by the department and the Respondent availed credit on the basis of the invoice issued by the supplier. The Hon ble Punjab Haryana High Court also in the case of Swaraj Automotives Ltd., (supra) held that Revenue is not suffered any loss, modvat credit having been taken only on duty paid by the assessee. In view of the above, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, appeal filed by the Revenue is rejected. (Order dictated and pronounced in the open Court) - - TaxTMI - TMITax - Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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