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TMI Blog2013 (11) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... t been invoked by Commissioner (Appeals) nor penalty under Section 11AC of the Central Excise Act has been invoked – Relying upon Collector of Central Excise, Pune vs. Maharashtra Scooters Limited [1996 (10) TMI 93 - SUPREME COURT OF INDIA ] - The show cause notice issued by Commissioner (Appeals) cannot be sustained as neither proviso to Section 11A regarding extended period has been invoked nor provisons of Section 11AC of the Central Excise Act, 1944 have been pressed into operation - The corrective action attempted by Commissioner (Appeals) in appeal cannot rectify the defect of the show cause notice. Filing of multiple declarations allowed or not - Whether appellant is entitled to file more than one declaration under Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant against Order-in-Appeal No. 313/2006 (Ahd-I) dated 02.1.2007. Under the Order-in-Original No. 26/Ad. Commr/2006 dated 10.05.2006 a transitional credit of Rs. 20,55,276/- under Notification No. 35/2003-CE (NT) dated 10.4.2003 was disallowed to the appellant and a penalty of Rs. 10,000/- was also imposed upon the appellant. During the course of personal hearing, held by Commissioner (Appeals) appellant was called upon to produce invoices under which credit was taken. Thereafter, a show cause notice was issued to the appellant on 16.11.2006 by Commissioner (Appeals) and under the impugned order in appeal dated 02.1.2007, Commissioner (Appeals) disallowed higher deemed cenvat credit of Rs. 29,85,059/- and enhanced the penalty fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to file more than one declaration under Notification No. 35/2003-CE (NT) dated 10.4.2003? (iii) Whether appellant was entitled to deemed cenvat credit under Srl No. 1(c) of the table to Notification No. 35/2003-CE (NT) dated 10.4.2003? 5. So far as point mentioned in Para 4 (i) is concerned it will be relevant to first see the provisions contained in Section 35 of the Central Excise Act, 1944:- Section 35, Appeals to Commissioner (Appeals) (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against: Provided that an order enhancing any penalty or fine in lieu o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of Section 35(3) of the Central Excise Act, 1944 within the time specified in Section 11A of the Central Excise Act, 1944. However, it is seen that the original show cause notice dated 28.6.2004 was issued for an amount of Rs. 20,55,276/- and extended period was not invoked. In the show cause notice dated 16.11.2006 issued by Commissioner (Appeals) demand has been proposed to be enhanced but extended period of five years has not been invoked by Commissioner (Appeals) nor penalty under Section 11AC of the Central Excise Act has been invoked. Therefore, as per the judgment of Hon ble Supreme Court in the case of Collector of Central Excise, Pune vs. Maharashtra Scooters Limited [1997 (17) RLT 697 (SC.)], the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed up to that date is a valid declaration, as held by Ahmedabad CESTAT Bench in the case of L.B. Textiles vs. CCE Ahmedabad-I [ 2008 (230) ELT 493 (Tri. Ahmd.)] relied upon by the appellant. It is accordingly held that there is no requirement under the provisions of Rule 9A of the Cenvat Credit Rules, 2003, as amended from time to time, for filing only one declaration. 8. The last point raised in Para- 4(iii) above required to be decided is whether appellant was entitled to a credit on grey textile fabric as per the provisions contained in Srl. No.2 or Sr. No.1(c) of the table annexed to Notification No. 35/2003-CE (NT) dated 10.04.2003. Both these serial numbers, as given in the table annexed to Notification No. 35/2003-CE (NT) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 55, 58, 59 or 60 of the First Schedule to the Tariff Act shall be entitled to avail credit equal to the duty paid on inputs of such finished product, lying in stock or in process or contained in finished products lying in stock as on 31st day of March, 2003 upon making a written declaration of the description, quantity and value of the stock of inputs (whether lying in stock or in process or contained in finished products lying in stock) and subject to availability of the document evidencing actual payment of duty thereon. 8.2 It is evident from the provisions of Rule 9A (1) that a first stage dealer or a second stage dealer is entitled to the service tax credit equal to the duty credit on inputs contained in the finished goods. This R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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