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TMI Blog2013 (11) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment at the end of the buyer of the inputs without review of the assessment by the jurisdictional Central Excise Authorities/assessing authorities at the supplier’s end - even if the duty has been paid in excess of the amount finally held to be payable, unless the excess duty paid has been refunded, the assessee could claim cenvat credit as the department could not get the duty twice - Follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of penalty. Subsequently, the jurisdictional Asstt. Commissioner confirmed the cenvat credit demand of Rs.4,52,653/- along with interest and imposed penalty of equal amount under Rule 15 of the Cenvt Credit Rules and also another penalty of Rs.10,000/- under Rule 25 of the Central Excise Rules, 2002. On appeal being filed to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 288) ELT 406 (Tribunal-Delhi) and that in view of this, the impugned order is not sustainable. 4. Ms. Ranjana Jha, ld. Joint CDR, defended the impugned order reiterating the findings of the Commissioner in it and further pleaded that the services of horticulture work, like maintenance of lawns, plantation, etc. was not taxable service, that in view of this, even if the service provider had paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of the actual liability, that same view has been taken by the Hon ble Punjab Haryana High Court in the case of M/s. V.G. Steel Industry Vs. CCE reported in 2011-TIOL-338-HC-P H-CX and also by the Apex Court in the case of Sarvesh Refractories (P) Ltd. Vs. CCE Customs reported in 2007 (218) ELT 488 (SC), wherein it was held by the Apex Court that the quantum of duty paid on any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities at the supplier s end. Therefore, I do not find any merit in this plea of the Department. 7. As regards the eligibility of the Cenvat credit on the service in question, I find this issue stands decided in favour of the appellant in their own case vide judgement reported in 2013 (288) ELT 406 (Tribunal-Delhi). 8. In view of the above discussion, the impugned order is not sustainable. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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