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TMI Blog2013 (12) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... e not required to reverse the credit availed in respect of inputs meant for use in the branded goods which throughout the period of dispute were dutiable and not eligible for SSI exemption - this aspect has to be verified and for this purpose, the matter had to be remanded. Duty Demand - Shortage of Goods – Held that:- The Tribunal has upheld the allegation of clandestine removal detected in 2005, thus the appellant at this stage cannot say that in 2005 there was no shortage and the goods of same quantity cleared in 2007 are the same goods, which were alleged to have been found short and in respect of which duty had been paid - the duty demand and penalty upheld - Decided partly in favour of Assessee. - Excise Appeal No.3272 of 2010 (SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty, claiming that duty in respect of these goods has already been paid in 2005, as in the year 2005 during the stock taking by the departmental officers, shortage of 15.70 M.T. had been detected and at that time, the appellant had paid this amount but according to the appellant this was not real shortage and the goods which were alleged to be found short in 2005 but were available in the factory, had actually been cleared in 2007. However, according to the department, the dispute of shortage of 15.7 M.T. had travelled upto the appellate Tribunal and the allegation had been upheld and hence the goods cleared in 2007 were totally different. On this count, there is duty demand of Rs. 59,112/- in respect of 15.7 M.T. of finished p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he brand name of other persons, that in respect of the branded goods cleared on payment of duty, they are availing Cenvat credit to which the department never objected, that for this purpose they are maintaining separate account and inventory of the inputs meant for branded goods and unbranded goods and during the period when the SSI exemption is being availed, the Cenvat credit is being taken only on the inputs are meant for branded goods, that on 31/3/07, they had the stock of inputs meant for branded as well as unbranded goods and at that time for compliance with the provisions of Rule 11 (2) of Cenvat Credit Rules, they reversed the entire Cenvat credit, While at that time, out of the Cenvat credit reversed, the credit of Rs. 3,21,564/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Rs. 59,112/- in respect of goods alleged to have been cleared without payment of duty, this demand is without any basis, as the duty in respect of these goods had already been paid in 2005 when the Department had wrongly alleged that these goods had been found short while the same were available, that duty in respect of the same goods cannot be demanded twice, that as regards taking of wrong credit in the PLA of Rs. 5,167/-, while the same is admitted, this credit has been taken due to mistake and had been utilised only to the extent of Rs. 1,286/-, that this credit has already been reversed, but since its utilisation was only to the extent of Rs. 1,286/- imposition of penalty of Rs. 5,167/-under Section 11AC is not sustainable, more s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had travelled upto the Tribunal and their allegation had been upheld by the Tribunal and the duty paid at that time was in respect of goods clandestinely cleared in 2005 and, hence, the goods of same quantity cleared in 2007 have obviously been cleared without payment of duty, and that as regards the wrong credit entry of Rs. 5,167/- this credit had been taken in the PLA without pay any amount under TR-6 challans and, hence, penalty has been correctly imposed on them. She, therefore, pleaded that there is no infirmity in the impugned order. 5. I have considered the submissions from both the sides and perused the records. 6. As regards the allegation of wrong Cenvat credit of Rs. 3,21,564/-, according to the appellant this credit is in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard is correct and the credit under dispute is in respect of the inputs meant for branded goods, which were lying in stock as on 31/3/07, they would be eligible for this credit, as they were not required to reverse the credit availed in respect of inputs meant for use in the branded goods which throughout the period of dispute were dutiable and not eligible for SSI exemption. However, this aspect has to be verified and for this purpose, this matter had to be remanded. 7. As regards duty demand of Rs. 59,112/- this demand is in respect of 15.7 M.T. of final product cleared in 2007, the appellant's plea is that these are the same goods which are alleged to have been found short in 2005 and in respect of which duty had been paid at that time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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