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TMI Blog2010 (10) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... of storage of the goods as they were in possession of the transporter - Demand upheld. As regards the issue relating to penalty, it was sought to be contended that the declarations were filed as to how the goods were sought to be procured by the appellants - the goods were yet to be received were claimed to be in stock with the appellants with the sole intention to avail the credit arising out of the duty paid on such goods, it would obviously disclose that the appellants were attempting to avail credit unlawfully - The provisions of law in relation to the matter in issue were very clear and there was no scope for any mis- understanding in that regard - Accordingly the appeals are dismissed - E/1590, 1780, 1970, 2047-2048, 2094 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in stock with the appellants within the meaning of the said expression under the said provision of law. 4. The departmental representative on the other hand has drawn our attention to the decision of the Tribunal in the matter of Noorani Tex Prints Ltd. v. CCE, Jaipur-II reported in 2008 (221) E.L.T. 225 (Tri. - Del.) while contending that the goods having not been received in the factory premises, the same were not ripe to be called as the goods in stock with the appellants within the meaning of the said expression under the said provision of law. 5. The Rule 9A of Cenvat Credit Rules, 2002 reads thus :- (2) Notwithstanding anything contained in sub-rule (1), the manufacturer, producer, first stage dealer or second stage dealer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee; or (ii) Where the inputs and the finished products are covered under notification Nos. 54/2001-Central Excise (N.T.), dated the 29th June, 2001, or 6/2002-Central Excise (N.T.) dated the 1st March 2002, subject to such conditions as prescribed under the said notification, the credit shall be equal to the product of - (A) The applicable percentage credits in terms of the said notification ; (B) The value of such finished product declared by the assessee ; and (C) The duty rate applicable to such final product in terms of Notification No. 7/2003-C.E., dated 28-2-2003. 6. The relevant date was subsequently changed to 1st April 2003 instead of 31st March 2003. There is no dispute that the appellants d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of those expressions under the said provision of law. Hence, unless the inputs or goods were in the factory premises, it could not have been said to be within the stock for the purpose of availing benefit under Rule 9A of the said rules. 8. The Commissioner (Appeals) in the impugned order in that regard has held thus :- Goods that have not been received cannot, by any stretch of imagination, be considered to be stock. The Board s intention in issuing the clarification is that credit should not be denied on stock which is not available in the factory due to any reason such as transfer to job work, outside storage, etc. Moreover, in terms of the provisions, the premises where the goods were lying were required to be declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace other than the registered place would also include to be goods in stock. Undoubtedly the said concession appears to have been given under the said Circular. However, the Circular will have to be read alongwith the statutory provisions. Having so read it would only mean that in case of insufficiency of place at the registered premises to store the goods, after temporary arrangements to be made to store the goods at some other place disclosed to the department, the goods stored at such place could have been considered as the goods in stock. However, for that purpose, it was necessary for the assessee to show that the goods had actually entered the factory premises before such store. Admittedly the appellants were not able to establish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that manufacturer has not filed any declaration for availing the benefit of notification and Hon ble Supreme Court has held that for filing a declaration is not an empty formality or procedural requirement. 9. In this case, the appellant filed a declaration for availing deemed credit in pursuance to the deemed credit order under Notification No. 25/2003. As per the condition of notification, the assessee is to declare the goods lying in stock or lying in stock as on 31-3-2003 by filing a written declaration. Subsequently, the notification was amended whereby stock position as on 1-4-2003 is to be disclosed in the declaration. The Board also issued a circular dated 28-3-2003 clarifying that in case the goods are kept in a place other than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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