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TMI Blog2011 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... d having used the entire credit for payment of basic excise duty, the appellant have paid the additional excise duty from PLA. If the Revenue s contention is that a part of the basic excise duty credit should have been availed under the head additional excise duty, the appellant was entitled to use the same very credit for payment of additional excise duty, instead of paying the additional excise duty from PLA - Appeal is allowed - E/2292 of 2006 - A/713/2011-WZB/AHD - Dated:- 8-4-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. For Appellant: Shri Paritosh Gupta, Advocate For Respondent : Shri Imamuddin Ahmed, SDR Per : Mrs. Archana Wadhwa; The brief facts of the case are that the appellants were engaged in the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 12 of Cenvat Credit Rules, 2002 (ii) the duty demand of Rs. 14,11,934/- on account of short payment of duty of BED under Section 11A of the Act, (iii) ordered interest under Section 11AB of the Act and (iv) imposed penalty of Rs. 5,00,000/- under Rule 25 of the Central Excise Rules, 2002. 2. Being aggrieved with the said order of the original adjudicating authority, the appellant preferred the appeal before Commissioner (Appeal), who rejected the same by observing as under and hence the appeal :- I find from the aforesaid two notifications that the appellants were required to pay duty at the rate of 8% BED and 4% AED on the value of clearance of final products and to avail deemed credit 33 = per cent of the aggregate of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 6/2002-CE(NT) dated 01.03.2002 allows the assessee to take deemed credit at the rate of 33 1/3 per cent of the credit of the duty of excise leviable under Central Excise Act, 1944 and the Additional Duty of Excise leviable under Additional Duties of Excise (Goods of special Importance) Act, 1957 in respect of Cotton fabrics. Similarly, deemed modvat credit at the rate of 66 2/3 per cent in respect of Man Made fabrics is available in terms of the said Notification. For better appreciation we reproduce the relevant provisions of the said notification :- 2. The Central Government further declares that :- (i) to (iii) .. .. (i) (a) (b) .. .. .. (ii) in case of a manufacturer other than a composite mill, shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate duty of excise leviable under the Central Excise Act and the Additional Duties of Excise leviable under Additional Duties of Excise (Goods of special Importance) Act, 1957, in respect of cotton fabrics and fabrics other than cotton fabrics respectively. The words used are aggregate of both the duties. As such, we are of the view that there is no requirement to segregate Basic Excise duty and the Additional Excise duty. The entire case of the revenue is based upon one factor that appellant should have availed the percentage modvat credit separately in respect of the two separate duties. We find that such a view entertained by the lower authorities is not emanating from the wording of the notification which clearly spells out that 33 1/3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation that the total modvat credit availed by the appellant is not more than what the notification prescribes, the ground adopted by the Revenue to deny the credit is not justified. 5. Even if the problem is examined from another angle, we find that having availed the credit under the head Basic Excise duty and having used the entire credit for payment of basic excise duty, the appellant have paid the additional excise duty from PLA. If the Revenue s contention is that a part of the basic excise duty credit should have been availed under the head additional excise duty, the appellant was entitled to use the same very credit for payment of additional excise duty, instead of paying the additional excise duty from PLA. The net result wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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