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TMI Blog2011 (3) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... eal does not require to be allowed High Court in case of the Commissioner of Central Excise v. Ashima Dyecot Ltd. reported in (2008 -TMI - 31832 - HIGH COURT GUJARAT), wherein it is held that reversal of credit even if it is subsequent to clearance or even after credit taken, would amount to non-availment of credit - Appeal is dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the inputs used in or in relation to the manufacturer of such ceramic tiles is taken under Rule 3 and Rule 11 of Cenvat Credit Rules, 2002/2004, this exemption under the notification can be claimed. And as respondent had already taken credit of duty paid on input, consequentially under the notification, concessional rate of duties would not be available to him and to other manufacturers. 2.2 Department having found that this double benefit is already taken by the respondent while clearing goods had deemed it appropriate to issue show cause notice on him on dated 1-6-2007. It is vital to note that the respondent, before this notice, had already reversed credit availed by him on input. 2.3 This show cause notice was contested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stifiable action of the respondent according to the learned counsel. 4. On perusal of the record, more particularly, the order in original of Commissioner and that of CESTAT where it has not sustained order of Commissioner, for the reasons to be followed here-in-after, this Court is of the opinion that with no question of law having arisen in this case coupled with the fact that there being no perversity at all in the order passed by the CESTAT, this appeal does not require to be allowed. 5. If one looks at the content of show cause notice dated 1-6-2007 issued to the respondent where demand under Section 11A, 11AB and 11C of differential duty (central excise duty) interest and penalty respectively, under the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer by further observing that "the question is to decide the demand for different central excise duty from the manufacturers who have misled the Revenue by taking cenvat credit on the inputs deliberately under the category of capital goods." The Commissioner also when confronted with judgment of the Apex Court in case of Chandrapur Magnet Wires (P) Ltd. v. Collector of C. Excise, Nagpur reported in 1996 (81) E.L.T. 3 (S.C.), did not agree to apply the ratio laid down in the said case of manufacturers by distinguishing the same on facts and chose to uphold the demand proposed in the show cause notice. 9. This when was challenged before CESTAT, it reversed the above order of Commissioner by observing as follows : "4. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, which is not a case here. Here reversal was much after this was detected, albeit before the issuance of show cause notice. On examining this contention, along with the discussion found in the order and judgment of both the Commissioner, Central Excise and that of CESTAT as well as from the record of the case, we are of the opinion that the present respondent had reversed the cenvat credit prior to issuance of show cause notice and while accepting said reversal, no challenge is made by the department to this act of respondent. Admittedly, on non-availment of the credit, manufacturer is entitled to the benefits emanating from notification which is of payment of reduced duty of 8% interest instead of payment of 16% duty. We therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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