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TMI Blog2013 (9) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty paid on inputs and capital goods, as per provisions of Cenvat Credit Rules, 2004. The period of dispute in this case is from April, 2008 to November, 2008. The appellant receive duty paid alumina hydrate in respect of which Cenvat credit is availed by them. For manufacture of Aluminium from alumina hydrate, the same is subjected to calcinations, which results in Calcined Alumina, which is nothing but alumina hydrate from which the water content had been removed. The allegation against the appellant is that during the period of dispute, i.e. during April, 2001 to November though they have taken Cenvat credit of Rs.3,35,45,318/- in respect of receipt of certain quantity of alumina hydrate, the evidence of physical receipt of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit on the strength of invoices having commodity Alumina Hydrate falling under Chapter sub-heading No.28183000. As per Rule 3 of Credit Rules two conditions namely (1) Payment of Duty and (2) receipt of input are must to avail the benefit of Cenvat credit. On further scrutiny it has been found that the party have not reflected the quantity as well as input Alumina Hydrate in the documents maintained in relation to the manufacture of finished goods. In their records, Calcined Alumina falling under Chapter sub-heading 28182010 has been mentioned. Party have also admitted vide their letter Ref. No.KNP/Audit/EA2000 dated 9.12.2008 that they are not maintaining records of Input - Alumina Hydrate and are maintaining records of Calcined Alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 15 of the Cenvat Credit Rules. 1.3 This show cause notice was adjudicated by the Commissioner of Central Excise vide Order-In-Original dated 20.05.2010 by which the entire Cenvat credit demand, as made in the show cause notice, was confirmed along with interest and besides this, penalty of Rs.5 Lakhs was also imposed on them. Against this order of the Commissioner, the appeal along with stay application has been filed. 3. Heard both sides in respect of stay application. 4. Shri B.L. Narsimahan, Advocate, ld. Counsel for the appellant, pleaded that the appellant were receiving duty paid Alumina Hydrate and were availing Cenvat credit of duty paid on the same, that the Alumina Hydrate before being taken up for extraction of Alumina wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant under Rule 22 (2) of Central Excise Rules, that it can be verified that in the RG-23 Part-I and II Registers, quantity of Alumina hydrate entered is after converting the weight of the Alumina hydrate into the weight of the Calcined Alumina by dividing the weight of the Alumina Hydrate by 1.53, that in view of this, the impugned order denying the Cenvat credit and ordering its recovery along with interest and imposing penalty on the appellant is not correct, that the appellant have strong prima facie case and hence, the requirement of pre-deposit under Section 35F of the Central Excise Act may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 5. Shri Sunil Kumar, ld. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , value, duty, etc. In terms of Rule 9(5) above, the party was under obligation to maintain proper records for the receipt, disposal, consumption and inventory of input with suppliers details with regard to alumina hydrate received by them under the said invoices. But the records i.e. RG-23 A Part-I and Part-II maintained with the party revealed that though the party have availed Cenvat credit of duty of the amount shown in the said invoices of alumina hydrate but the description of the goods and quantity are not matching. Description of the goods are mentioned as calcined alumina and quantity is different than what is mentioned in the invoices. Even the supplier's name is also not available in the records maintained with the party. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of Hydrate Alumina is not correct, more so, when on comparison the receipt entries regarding Alumina in RG-23-A Register with the quantity of Alumina hydrate mentioned in the invoice, it is seen that the quantity has been entered in the RG-23 A Register after converting the weight of the Ajurnina hydrate into Calcined Alumina,
8. We are, therefore, of the prima facie view that the appellant have strong prima facie case and asking them to pre-deposit of the Cenvat credit demand, interest and penalty would cause undue hardship to them. Therefore, the requirement of pre-deposit is waived for hearing the appeal and recovery thereof is stayed till the disposal of the appeal. Stay application is allowed.
(Pronounced on 29.5.2012) X X X X Extracts X X X X X X X X Extracts X X X X
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