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TMI Blog2015 (10) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... otal the figure of 59,57,159/- in the ER-1 returns for 2001-2002 in respect of the Cenvat credit availed inputs used in the manufactured of transformers, in respect of which at the time of clearance of the transformers, they have paid the amount equal to the Cenvat credit availed. Whenever they used non-Cenvat credit availed inputs for repair, there is no reversal of Cenvat credit, but still these parts having been sold are reflected in the balance sheet. I find that no finding has been given by the Commissioner (Appeals) on this plea and he has simply confirmed the demand stating that the repair activity being excisable, the duty should have been paid on this amount also, while this is not the allegation in the show cause notice. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of its CT number embossed on it. One objection of the department is that this availment of credit of ₹ 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 the ER-1 return for 2001-2002 the departmental officers found that while the figures of non-excisable goods cleared during that year was ₹ 59,57,159/-, in their balance sheet they have shown the sale value of such goods as ₹ 84,11,772/- and accordingly the department has demanded duty @ 16% on the differential amount of ₹ 24,54,613/-. 1.3 After issue of show cause notice, the Jurisdictional Joint Commissioner vide order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) E.L.T. 587 (Tri. Chennai), that as regards the duty demand of ₹ 3,92,576/-, the same is in respect of certain non Cenvat credit availed parts used by the appellant in repair of transformers, that whenever for repair of transformers, the appellant used any Cenvat credit availed parts, at the time of clearance of the repaired transformer, an amount equal to the Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,31,031/- has been correctly denied, that as regards the duty demand of ₹ 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 hence this is not the case for waiver from the requirement of pre-deposit. 5. I have carefully considered the submissions from both the sides and perused the record. 6. The first point of dispute is regarding Cenvat credit of ₹ 5,31,031/- in respect of demand under Rule 16 of the Central Excise Rules in respect of transformers returned to the appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese goods of a value of ₹ 59,57,159/-, whereas they have shown in their records the value of these goods as ₹ 84,11,772/-. Thus there appears a difference of ₹ 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 party could not produce any records/data for the same. Therefore the Central Excise duty amounting to ₹ 3,92,578/- on a value of ₹ 24,53,613/- is demandable from the party as they failed to account for as value of excisa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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