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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 ..... uary 2002 some of the transformers were returned by their customers for repairs, but the return of the transformers was not under the original invoices. The appellant, however, took Cenvat credit of Rs.5,31,031/- under Rule 16 of Central Excise Rules in respect of these transformers on the basis of triplicate copy of the invoice available with them, as according to them each transformer could be linked to the invoice under which it had been cleared on the basis of its CT number embossed on it. One objection of the department is that this availment of credit of Rs.5,31,031/- under Rule 16, in respect of the transformers returned without the original invoices under which the same had been cleared, is irregular. 1.2 In course of scrutiny of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the department is that in absence of original copies of the invoices under which the goods had been cleared, the Cenvat credit cannot be availed by the appellant, that this plea is incorrect, as though the transformers had not been returned under original invoices, but had been returned under challans, the transformers returned could be linked to the triplicate copies of the invoices on the basis of CT number, that the appellants, therefore, have correctly taken the Cenvat credit on the basis of triplicate copies, that in this regard he relies upon the Mysore Commissionerate's Trade notice No.21/2004 dated 11/05/2004 and also the judgment of the Tribunal in the case of BAPL Industries Ltd. vs. CCE, Coimbatore reported in 2006 (198) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nda, the learned Jt. CDR opposed the stay applications by reiterating the findings of the Commissioner (Appeals) and pleaded that as regards the availment of Cenvat credit in respect of the transformers returned for repair, the appellant were not in a position to produce even the duplicate or triplicate copies bearing the CT numbers and hence the Cenvat credit of Rs.5,31,031/- has been correctly denied, that as regards the duty demand of Rs.3,92,578/-, since the activity of repair of transformer amounts to manufacture, the duty has to be paid on all the parts whether Cenvat credit availed or not non-Cenvat credit availed and hence this demand has been correctly upheld, that the appellant do not have prima facie case in their favour and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.3,92,578/-, the basis of this demand, as mentioned in the show cause notice is reproduced below :- "Scrutiny of the sale figures of non-excisable goods for the year 2001-2002 has revealed that the said party cleared these goods of a value of Rs.59,57,159/-, whereas they have shown in their records the value of these goods as Rs.84,11,772/-. Thus there appears a difference of Rs.24,54,613/- as per details given in Annexure 'D'. On being asked the said party could not produce the relevant records like ER-1 returns, Sale Tax Returns and Balance Sheet of the corresponding year. During scrutiny of the records it was observed that the said party had another unit at B-40, Jhilmil Industrial Area, Delhi, but the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty being excisable, the duty should have been paid on this amount also, while this is not the allegation in the show cause notice. Moreover in any case, the finding that repair of transformers amounts to manufacture is totally wrong finding - in respect of clearance of repaired transformers no duty can be demanded, only Cenvat credit on cenvated parts used in repairs is required to be reversed. In view of this, I hold that so far as the duty demand of Rs.3,92,578/- is concerned, the appellant have prima facie case in their favour. 8. In view of the above discussion and taking into account overall facts and circumstances of the case, I direct the appellant to deposit an amount of Rs.1,00,000/- (Rupees One Lac) towards the Cenvat credit dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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