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TMI Blog2014 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... No. AV(321)284/2013 dated 18.12.2013 passed by the Commissioner of Central Excise (Appeals), Aurangabad. Vide the impugned order, the lower appellate authority has upheld the duty demand of ₹ 77,59,089/- confirmed against the appellant M/s Dnyaneshwar SSK Ltd. along with interest thereon and also imposing equivalent amount of penalty. 2. In the miscellaneous application, the appellant has taken an objection against hearing of the appeal and stay petition by the Division Bench comprising of Shri P.R. Chandrasekharan, Member (T) and Shri Anil Choudhary, Member (J) on the ground that the said Bench had earlier heard this matter in the context of an ROM application filed against order No. A/417/11/EB/C-II dated 08.03.2011 passed by this Tribunal and allowed the said application and directed the original adjudicating authority for re-determination of demand in accordance with law. The said decision was challenged by the appellant before the Hon'ble Bombay High Court and the Hon'ble High Court vide order dated 11.07.2013 in Central Excise Appeal No. 5 of 2013 had directed the adjudicating authority to consider all objections that may be raised by the appellant to the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the molasses is not an input for manufacture of sugar and, therefore, utilization of credit on molasses is not permissible under the CENVAT credit Rules as they stood at the relevant time and accordingly, confirmed the duty demand. Aggrieved of the same, the appellant is before us. 5. The ld. Counsel for the appellant submits that there is no one to one correlation required between the input and output under the CENVAT Credit Rules and, therefore, there is no bar on utilization of CENVAT credit of duty paid on molasses for payment of duty on sugar. Reliance is placed on the decision of this Tribunal in the case of Niphad SSK Ltd. vide order No. A/221 to 223/2010/EB/C-II dated 30.06.2010, wherein it was held that there is no bar on utilization of duty paid on molasses for payment of duty on sugar in terms of the provision of Rule 57F(12) and Rule 57AD(11). Reliance is also placed on the decision of this Tribunal in the case of Shri Datta Shetkeri SSK Ltd. - 2004 (178) ELT 484 (Tri- Mum), Kumbhi Kasari SSK Ltd. - 2001 (128) ELT 246 (Tri-Mum) and Navabharat Ferro Alloys - 2007 (210) ELT 705 (Tri-Bang), wherein stay has been granted. It is urged that these decisions should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... molasses for payment of duty on sugar is not permissible and, therefore, the impugned demands are sustainable in law. Accordingly, it is pleaded that the appellant should be put to terms. 7. We have carefully considered the submissions made by both sides. 7.1 Rule 3 of the Cenvat Credit Rules is reproduced below:- 3. CENVAT credit .- (1) A manufacturer or producer of final products shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of - i. the duty of excise specified in the First Schedule to the Tariff Act, leviable under the Act; ii. the duty of excise specified in the Second Schedule to the Tariff Act, leviable under the Act; iii. the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act,1978 ( 40 of 1978); iv. the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 ( 58 of 1957); v. the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); and vi. the additional duty leviable under section 3 of the Customs Tariff Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods at the rate applicable to such goods on the date of such removal and on the value determined for such goods under section 4 or section 4A of the Act, as the case may be, and such removal shall be made under the cover of an invoice referred to in rule 7. (5) The amount paid under sub-rule (4) shall be eligible as CENVAT credit as if it was a duty paid by the person who removed such goods under sub-rule (4). (6) Notwithstanding anything contained in sub-rule (1),- (a) CENVAT credit in respect of inputs or capital goods produced or manufactured ,- i. in a free trade zone or a special economic zone and used in the manufacture of the final products in any other place in India; or ii. by a hundred per cent. export-oriented undertaking or by a unit in an Electronic Hardware Technology Park or Software Technology Park and used in the manufacture of the final products in any place in India, shall be restricted to the extent which is equal to the additional duty leviable on like goods under section 3 of the Customs Tariff Act, 1975 (51 of 1975) paid on such inputs or capital goods; (b) CENVAT credit in respect of - i. the additional duty of excise under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribes that the manufacturer shall be allowed to take CENVAT Credit of the duty paid on any inputs or capital goods received by the manufacturer for use in or in relation to the manufacture of final products, the said Rule does not deal with utilization of credit. Utilization of credit is dealt within sub-rule (3) and the said sub-rule provides that CENVAT Credit may be utilized for payment of any duty of excise on any final products or for payment of duty on inputs or capital goods, if such inputs are removed as such or after being partially processed, or such capital goods are removed as such. 7.2 From a reading of sub-rule (3), it is abundantly clear that there is no one-to-one correlation required between the input and the output and the duty paid on any input can be utilized for payment of any duty of excise on any final product. The decision of this Tribunal in the various case laws relied upon by the appellant also support this view. Therefore, prima facie, the appellant has made out a case for grant of stay. 8. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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