2012 (10) TMI 267

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..... e applicants have procured the inputs i.e. iron ore concentrate from M/s. Tata Steel, as the conversion of iron ore into iron ore concentrate does not amount to manufacture and the said iron ore concentrate is exempted fully from payment of duty in terms of Notification No. 4/06-C.E., dated 1-3-2006. As, M/s. Tata Steel paid the duty on the exempted goods which was not required to be paid and the credit of the same taken by the applicant is not admissible to them on this exempted input i.e. iron ore concentrate. Therefore, a show-cause notice was issued for denial of cenvat credit wrongfully availed on the exempted inputs procured by the appellants and thereby without paying proper Central Excise duty on their final product. The said show-c .....

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..... duty is payable by M/s. Tata Steel on the said inputs. The said amount paid by M/s. Tata Steel cannot be termed as duty and as duty is not payable, the appellants are not entitled to take credit of the same. He further submitted that the Hon'ble High Court of Kolkata in the case of Simplex Infrastructures Ltd. v. Commissioner of Service Tax, Kolkata reported in 2010 (263) E.L.T. 195 (Cal.) = 2011 (21) S.T.R. 11 (Cal.), has made an observation that if merely on the basis of recording a prima facie case without taking into consideration the balance of convenience and inconvenience or the case of irreparable injury of the appellants, an injunction is passed restraining the Government from realizing revenue, it will be prejudicial to the inter .....

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..... ccepted this excise duty. The concept of modvat is that if the raw material suffered duty then relief should be given so far as excise duty on the final product is concerned. Thus, there is no error of law in the order of the Tribunal - Hence, the reference application is rejected. [Paras 2, 4]                       Application dismissed" 6. Further, we find that in the applicants' own case for the earlier period on the identical issue, this Tribunal has already granted un­conditional waiver of pre-deposit of duty, interest and penalty. 7. We have to consider the reliance and contentions of Shri Acharyya, ld. Spl. C .....

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