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TMI Blog2013 (12) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of final hearing - this is not the case for total waiver. Duty Demand – Held that:- The show cause notice itself mentions, the goods in respect of which duty has been demanded, as non-excisable goods – thus there is no basis on which the duty had been demanded - Whenever they used non-Cenvat credit availed inputs for repair, there is no reversal of Cenvat credit, but still these parts having been sold are reflected in the balance sheet - only Cenvat credit on cenvated parts used in repairs is required to be reversed - as the duty demand is concerned, the appellant have prima facie case in their favour - Decided partly in favour of Assessee. - 56866-56867 of 2013 (SM) - - - Dated:- 17-6-2013 - Rakesh Kumar, J. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has demanded duty @ 16% on the differential amount of Rs.24,54,613/-. 1.3 After issue of show cause notice, the Jurisdictional Joint Commissioner vide order-in-original dated 6/12/07 confirmed the Cenvat credit demand of Rs.5,31,031/- and duty demand of Rs.3,92,578/- alongwith interest and imposed penalty of equal amount on the appellant. Beside this he also imposed penalty of Rs. 2,00,000/- on Shri B.K. Goyal, Director of the appellant company. On appeals to Commissioner (Appeals), this order of the Joint Commissioner was upheld vide order-in-appeal dated 02/2/10. The appellants filed appeals to Tribunal against the Commissioner (Appeals)'s order and the Tribunal vide final order dated 23/7/12 remanded the matter to Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Cenvat credit availed parts, at the time of clearance of the repaired transformer, an amount equal to the Cenvat credit availed in respect of that part is paid and the same is reflected in the ER-1 return, that when the part used in repair of transformer is not non-Cenvat credit availed part, no amount is paid, that the sale of all the parts used in repairs, whether Cenvat credit availed or not are reflected in the balance sheet, that the difference between the ER-1 return figure of sale of such parts and the balance sheet figure of sale of such parts is only for the reason that the parts used in repair in respect of which no Cenvat credit has been availed and for this reason no amount was paid at the time of their clearance with repair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand under Rule 16 of the Central Excise Rules in respect of transformers returned to the appellant for repairs. There is no dispute that these transformers have not been returned under the original or duplicate copy of the invoice had been returned only under challans. The appellant's plea is that even though the transformers have not been received under original or duplicate copy of the invoices, the same can be linked with the invoices under which the same had been cleared on the basis of CT numbers embossed on the Transformers and since the appellant had triplicate copy of the invoices containing CT number with them, they have linked the transformers returned to them with the triplicate copies of the invoices on the basis of CT numbers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 4,6,8,10,11 and 12 of Central Excise (No.2) Rules, 2001 and the same to recoverable under Section 11(1) of Central Excise Act, 1944 alongwith interest at applicable under Section 11AB of the Central Excise Act, 1944". 7.1 When the show cause notice itself mentions, the goods in respect of which duty has been demanded, as non-excisable goods, I fail to understand as to on what basis the duty had been demanded, when the difference between ER-1 return figure and balance sheet figure is on account of the sale of non-excisable goods. On going through the impugned order, I find that the appellant have declared total the figure of 59,57,159/- in the ER-1 returns for 2001-2002 in respect of the Cenvat credit availed inputs used in the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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