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TMI Blog2015 (9) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Mr.A.P. Srinivas, learned Senior Panel Counsel appearing for the second respondent. 3. The appellant is a manufacturer of cotton knitted garments and cotton knitted fabrics, falling under Sub-Heading Nos.6101.00 and 6002.92 respectively under the First Schedule to the Tariff Act, 1985. 4. On the ground that the appellant had wrongly availed CENVAT credit on the stock declared on 1.4.2003 and utilized the same for payment of duty towards clearance of knitted garments manufactured by them, a show cause notice dated 8.7.2004 was issued. The appellant gave a reply on 29.7.2004. Thereafter, a personal hearing was conducted and the Commissioner of Central Excise passed an Order in Original dated 3.11.2004, disallowing a claim for CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Tribunal is right in holding that the date of filing of the return under Rule 12 of the Central Excise Rules, 2002 is 'relevant date' for the purpose of Section 11A of the Central Excise Act, 1944 and not the last date on which the return envisaged under Rule 7(5) of the CENVAT Credit Rules, 2002 ought to have been filed ? (c) Whether the relevant date as defined in Section 11A(3)(ii)(a)(A) or 11A(3)(ii)(a)(B) of the Central Excise Act, 1944 is applicable for the given case ? and (4) Whether the return prescribed under Rule 12 of the Central Excise Rules, 2002 or the return prescribed under Rule 7(5) of the CENVAT Credit Rules, 2002 is relevant for the purposes of any demand under Rule 12 of the CENVAT Credit Rules, 2002 ?" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finished products. The appellant has not made a claim in respect of the entire quantity and value of the inputs that had gone into the making of the finished products. 10. Incidentally, it should be pointed out that the appellant uses yarn, on which, excise duty is paid. This yarn is made into fabric and the fabric is made into garment. Their claim for credit was confined only to the duty paid on the yarn that had gone into the making of fabric. The claim of the appellant is that unless X quantity of yarn is used, 0.95 x quantity of fabric could not be produced. In other words, their claim is that about 5% of the quantity and value of yarn is lost while making it into a fabric and that therefore, they are entitled to take credit for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A is not understood in this manner, every manufacturer will have to pay excise duty on the quantity and value of inputs, which go to the making of a finished product, whose weight will never be equivalent to the sum total of the weight of all the inputs. Therefore, this is not the way to understand Rule 9A. 15. Right from the stage of issue of show cause notice upto the stage of the order of the Tribunal, the claim of the appellant that they incur a manufacturing loss to the extent of 5% of the total quantity of the finished product, has not been disputed by the Department. In cases where there is a dispute about the existence of a loss and in cases where there is a dispute with regard to the quantum of loss, the questions may have to be l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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