9911796707
TMI Blog2008 (6) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As per the provisions before the year 2000, the credit of AED (GSI) could have been utilized for payment of AED (GSI) duty only leviable on the final products and could not have been utilized for the purpose of payment of Basic Excise Duty (BED). However, in March, 2003 Cenvat Credit Rules, 2002 were amended by introduction of an explanation to Rule 3(6) (b), by which the credit in AED (GSI) Cenvat credit account could be utilized for payment of BED and SED also. On such amendment, the respondent utilized the credit lying in their AED (GSI) Cenvat credit account, which was taken in respect of AED (GSI) paid on unprocessed tyre cord fabrics for payment of BED and SED payable in respect of the end products tyres. 2. Vide Section 88 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e credit entry was taken in their PLA. The credit taken by them was considered illegal as TR-6 challan is not a valid documents to avail Cenvat credit. In view of this, it was alleged that they could neither had taken the credit nor utilized the same and accordingly, the show cause notice proposed to deny the credit amounting to Rs. 6,83,00,364/- taken by them and to recover Rs. 6,59,36,795/- utilized by them out of the above amount along with the proposal to impose penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC. 5. The matter was adjudicated by the Commissioner, who dropped the proceedings holding that the credit has been rightly restored by the respondent. It is against this order that the revenue has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Cenvat credit. Since the amount was wrongly paid through AED (GSI) credit account, the payment through TR-6 challan was a corrective procedure prescribed by the department and this procedure nowhere gave the rights to the respondent to simultaneously avail credit in their AED (GSI) credit account. Reference in this regard was invited to the Supreme Court decision in the case of Baidyanath Ayurved Bhawan (P) Ltd. v. CCE, as reported at 1999 (110) E.L.T. 363 (S.C.), wherein it has been held that multi point taxation is not illegal per se and where Parliament wants to give relief, it specifically provides for it and that in interpreting a taxing Act one has to look at what is clearly said. There is no room for any intendment. There is no equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D (GSI) was utilized for payment of BED as per the provisions prevailing during the relevant time and such payment at relevant point of time can not be faulted with nor is alleged to have been incorrectly done. It was only through retrospective legislation that such payment was considered as per irregular and the amount of AED (GSI) credit so utilized was recovered from them. Once this amount of BED was paid through their PLA account, which was earlier paid through the AED (GSI) Cenvat account, they are entitled to credit of corresponding amount in their AED (GSI) Cenvat credit account. They referred to the decision of Tribunal in the case of TELCO v. CCE, Jamshedpur, as reported in 2001 (138) E.L.T. 1132 (Tri.-Kolkata) wherein para 27 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of these decisions, it was submitted that restoration of credit taken by them cannot be objected to and the Commissioner s order does not require any interference. 8. We have considered the submissions. We find that the only issue involved in the present case is whether the respondent could have suo motu taken credit of amount of AED (GSI) wrongly utilized by them for payment of BED on their product tyres, which was later on paid through PLA and has thus resulted in double payment of duty once through credit account and second through PLA account. A plea was also made that the amendment in 2005 was for recovery of BED earlier paid through AED (GSI) account accrued prior to 1-4-2000 and did not provide for any such restoration of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
