9911796707
TMI Blog2011 (3) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... interest has been paid and the learned advocate fairly submitted that they are not challenging this and they would not be claiming refund of the same, the duty demand and interest are confirmed as not challenged. Learned Commissioner has imposed penalty equal to this amount under Section 11AC and in view of the observations above, the penalty is set aside. Cenvat credit taken on LDPE bags and furnace oil used in the manufacture of zinc dust manufactured on job work basis - Held that:- When there is no allegation in the show cause notice that goods were not manufactured on job work basis or the principal manufacturer had not paid duty, the need for producing any evidence does not arise. In this view of the matter denial of the cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. For the purpose of supplying of zinc dust to their unit at Atladara, appellants adopted cost construction method. After a visit to the appellant s unit and further investigation of their activities, Revenue entertained a view that the assessee had not adopted the proper method for valuation of goods manufactured and cleared to their unit at Vadodara and there by there was a short levy of Rs.52,37,663/- during the period from April 2002 to May 2004. Further, it was also observed that appellants had availed cenvat credit on furnace oil and LDPE bags used in the manufacture of zinc dust on job work basis and supplied to their unit at Vadodara and this was not admissible since the finished goods were exempt from payment of central excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the other unit. Further he drew our attention to Annexure B to the show cause notice which reveals that during the period from 01.04.03 to 05.05.04, there was an excess payment of duty to the extent of Rs.19,35,450/-. The fact that there was an excess payment even according to department s calculation shows that appellant had no intention to evade duty and therefore the short levy has occurred because of the bonafide error. Further, he also drew our attention to the submissions made by the appellants whereby they have shown that if the calculations were to be made correctly as per CAS-4, the excess payment would be more than Rs.27 lakhs. However the appellant did not want to litigate. Therefore as soon as the error was pointed out, chose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal - Larger Bench in the case of Sterlite Industries Ltd. Vs. CCE reported in 2005 (183) ELT 353 (Tri. LB). We find that in Sterlite Industries Ltd. case also, the Revenue had proposed to deny modvat credit to the job worker on the ground that the inputs were used in the manufacture of goods which were cleared without payment of duty. After considering the issue in detail, the Tribunal had taken a view that modvat credit of duty paid on the inputs used in the manufacture of final product cleared without payment of duty for further utilization in the manufacture of final product and cleared on payment of duty by the principal manufacturer would not be hit by the provisions disallowing cenvat credit in the case of inputs used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate before him stating that appellants have not produced any evidence. When there is no allegation in the show cause notice that goods were not manufactured on job work basis or the principal manufacturer had not paid duty, the need for producing any evidence does not arise. In this view of the matter, we find that the denial of the cenvat credit of Rs.10,94,558/- cannot be sustained and has to be set aside. Further, the penalty equal to this amount imposed by the learned Commissioner is also required to be set aside. 5. The learned advocate did not press the arguments as regards demand of duty for Rs.3,241/- even though in the memorandum of this appeal was also contested. Accordingly the demand for Rs.3,241/- has to be sustained as n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
