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TMI Blog2012 (2) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... at the calculation given by the assessee is not proper and he has to disclose the method he is going to adopt to the assessee so that the assessee can make submissions as to why the calculation adopted by him may or may not be justified. After the retrospective amendment made by Section 73 of Finance Act, 2010, there is no scope for demanding the assessee to pay 10%/5% of the value of the exempted product. Prima facie, we are convinced that the assessee has complied with the provisions of the amended Rule 6 of Cenvat Credit Rules, 2004. Retrospectively amended provisions are applicable for the impugned period also. If the calculations submitted by the appellant is not correct, the Commissioner has to calculate the correct amount to be rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The contention of the appellants is that they did not take Cenvat credit in respect of inputs that were used in the manufacture of exempted products and they have been maintaining accounts of such raw materials for which they had not taken Cenvat credit. Therefore, their main contention is that they have taken credit only as per Rule 6(1) of the said Rules and there is no case for invoking the provisions of Rule 6(3) because that rule is applicable only for a manufacturer who does not maintain separate accounts for inputs used in the manufacture of dutiable and exempted products. They further point out that the Cenvat credit taken by them was short of the amounts for which they would have been eligible for credit. They present the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis for invoking the extended period of five years for demanding any amount short paid. For the same reasons, they also submit that no penalty is imposable on them. 7. The learned AR for Revenue submits that the appellants have maintained separate account only in respect of Soda Ash and not in respect of other raw materials and therefore, their claim that they were maintaining separate accounts in respect of inputs is false. There is no evidence that they have taken only proportionate credit in respect of other inputs. Since such accounts were not maintained, the demand for 10%/5% of the value of exempted goods is proper. 8. We see that the applicant had filed an application as prescribed in Section 73 of Finance Act, 2010 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that reversal of credit on proportionate basis is virtually impossible in the facts and circumstances of this case, and the party is liable to pay the amount at the prescribed rate during the relevant period." 9. We have considered arguments of both sides. 10. As per the provisions of Section 73(3) of Finance Act, 2010, if the Commissioner finds that the credit reversed by the assessee is not correctly reversed, the only option available to the Commissioner is to calculate it correctly and then ask them to reverse the correct amount. It goes without saying that before adopting the above manner of calculation, he has to give reasons as to why he considers that the calculation given by the assessee is not proper and he has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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