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TMI Blog2009 (3) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... : A.K. Srivastava, Member (T)]. - This appeal has been filed by Dr. Writer s Food Products Pvt. Ltd., Satara against the Order-in-Original dated 29-10-2007 passed by the Commissioner of Central Excise, Pune-II Commissionerate. The Commissioner, vide the impugned order, confirmed the demand of Rs. 2,32,40,170/- together with interest and imposed equivalent penalty of Rs. 2,32,40,170/-. She appropriated the amount of Rs. 70,21,383/- which was paid by the appellants towards the input credit availed on cocoa beans utilized for the manufacture of the exempted cocoa liquor and low moisture cocoa mass and directed the appellants to pay the balance amount of Rs. 1,62,18,787/- forthwith. As per the records, the interest of Rs. 4,71,189/- stands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and as per law it is mandatory on their part to pay an amount equal to 10% of total price of exempted goods. Thus the credit would have been admissible only if the assessee would have reversed the credit availed on inputs and consumed in exempted products before clearances of the exempted goods otherwise 10% amount payment is mandatory on the part of the assessee. Thus the Show Cause Notice and the impugned order proceed on the premise that had the appellants would have reversed the credit availed on the inputs consumed in the exempted products before clearance of the exempted goods, such reversal would have sufficed and would have met the requirement of law in terms of the Supreme Court judgment in the case of M/s. Chandrapur Magnet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common inputs after the assessee undertook before the Tribunal to reverse the credit taken on such inputs used in non-dutiable goods in as per the statutory requirement. Thus the reversal of the credit at the Tribunal stage i.e. much after the clearances of the exempted goods from the factory, was held to be in order. 7. The learned Jt. CDR has drawn our attention to para 8 of the judgment in the case of CCE, Bombay-I v. Bombay Dyeing and Mfg. Co. Ltd. reported in 2007 (215) E.L.T. 3 (S.C.), which is reproduced below : There is no merit in this civil appeal. Under the notification, mode of payment has not been prescribed. Further, exemption is given to the final product, namely, grey fabric. Under the Central Excise Act, 1944, levy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the credit is reversed after utilization and after the clearance of the exempted goods, it would still amount to taking the credit and exemption will not be available. The appellants, in the case before us, have not only reversed the credit of Rs. 70,21,383/- but also paid the interest of Rs. 4,71,189/-. We feel that by doing so, the appellants, have undone the act of taking/utilizing the credit and in the light of the Allahabad and Gujarat High Court judgments supra, it amounts to not taking the credit and, therefore, they are not required to pay an amount equal to 10%. 9. We, therefore, set aside the order of the Commissioner and allow the appeal filed by the appellants. 10. Since we have allowed the appeal filed by the appellants, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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