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TMI Blog2013 (11) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that what is to be taken into account is the factual state of affairs - once the duty has actually been paid on the raw material, the credit is admissible - Even the amended CENVAT Credit Rules have similar provisions and provide for CENVAT credit of duty paid on inputs. There is no such obligation on the person who receives the goods and avails the CENVAT credit - He is eligible to take CENVAT credit of duty paid which is specified in the First Schedule to the Central Excise Tariff Act - The responsibility of the receiver of the inputs/capital goods is to ensure that duty has been paid and the same has been received by him, accounted for by him and utilized by him properly. In Board’s Circular No. 940/1/2011-CX dated 14.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the manufacture of Bulk Drugs and intermediaries falling under Chapter 29 of the First Schedule to the Central Excise Tariff Act, 1985. They purchased Ethanol (un-denatured) manufactured by M/s. Andhra Sugars Ltd. which was cleared by the supplier on payment of duty. The duty so-paid was availed as CENVAT credit. Ethanol (un-denatured), according to the Revenue, was classifiable under Chapter 2204.90 up to 28/02/2005 attracting nil rate of duty and with effect from 01/03/2005, there was no specific chapter heading for the said product ethanol (un-denatured) implying that the product was non-excisable with effect from 01/03/2005. Taking a view that the amount paid by M/s. Andhra Sugars Ltd. did not represent excise duty leviabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid and not payable. The High Court observed that this distinction is very important and which indicates that what is to be taken into account is the factual state of affairs. Thereafter, the Hon ble High Court observed that once the duty has actually been paid on the raw material, the credit is admissible. In this case also, it is not the case of the Revenue that duty was not paid. Therefore, the decision of the Hon ble High Court of Madras is clearly applicable to the facts of this case. Even the amended CENVAT Credit Rules have similar provisions and provide for CENVAT credit of duty paid on inputs and therefore the appeal has to be allowed. 5. At this stage learned AR submits that the decision of the Hon ble High Court of Madras woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the CENVAT credit. He is eligible to take CENVAT credit of duty paid which is specified in the First Schedule to the Central Excise Tariff Act. What is to be noted as observed by the Hon ble High Court is the fact that he is not required to determine the duty payable since what is provided in Rule 3 is that he shall be eligible to take credit of the duty paid. He is not required to determine the duty payable which is a part of assessment and is required to be done by the supplier of the goods. If the arguments advance by learned AR are accepted, the duty payable is also to be determined by the receiver of the goods and he has to determine that aspect first and then take credit, the assessee is required to assess all the goods/services rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of credit taken. The Board assumes that if an assessee takes credit of duty which was not required to be paid but paid, availment of credit would attract the provisions of Rule 14 of the CENVAT Credit Rules. The conclusion is that the credit which was taken wrongly would arise when an assessee is required to determine whether the inputs/capital goods received by him are liable to duty or not and whether duty is payable or not. There is no rule which puts an obligation on the receiver of goods. When we take note of the fact that the assessee may receive inputs/capital goods/services classifiable under almost all the headings, it is difficult to imagine that legislature would require the assessee to determine whether duty is payable for all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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