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TMI Blog2015 (12) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... n their accounts also. The appellant has been maintaining the requisite records in respect of receipts and consumption of inputs and availment and utilization of cenvat credit. Here it is pertinent to mention the circular issued by the Board vide Circular No.703/19/2003-CX dated 25.3.2003 issued in the wake of revamping of central excise duty structure for textile industry by Finance Budget 2003. Appellant's case is fully covered by the circular cited above. Moreover, the benefit of credit is sought to be denied on purely technical grounds. It is settled law that substantive benefit cannot be denied merely on technical grounds - impugned order is liable to be set aside - Decided in favour of assessee. - Appeal Nos. E/854 & 855/10-Mum - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that the appellant at the relevant time was availing the benefit of both the exemption Notifications 29/2004 and 30/2004 and was clearing final product without payment of duty and also on payment of duty. The appellant used to take cenvat credit on grey fabrics to the extent of 20% of the total duty paid and forgoing the credit to the extent of 80% and similar practice was followed in respect of other inputs like dyes, chemicals etc. and this practice was based upon the ratio of clearances of dutiable and exempted final products, which was approximately 20:80. A show cause notice was served on the appellant for wrong availment of cenvat credit amounting to ₹ 3,90,223/- along with interest and penalty under Rule 12 of the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them by upholding the decision of the adjudicating authority. Now the appellant is before this Tribunal by filing these two appeals which are on identical facts. 3. The learned counsel for the appellant submitted that the impugned order upholding the demand towards cenvat credit is illegal, improper, liable to be set aside being unsustainable in law and also contrary to the relevant statutory provisions. He further submitted that during the relevant time, the appellant was availing the benefit of both the Notifications 29/2004 and 30/2004 and has been availing the cenvat credit only to the extent of 20% of the duty paid on various inputs including the grey fabrics and forgoing credit to the extent of 80% based on their ratio of turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of cenvat credit cannot be denied on technical grounds when the appellant has admittedly forgone the benefit of credit on input for use in the manufacture of exempted goods. 4. On the other hand, the learned AR reiterated the findings of the Commissioner (Appeals) and submitted that the appellant did not maintain separate accounts of inputs used in the manufacture of exempted as well as dutiable goods and therefore he has followed Rule 6(2) of the Cenvat Credit Rules, 2002 and the appellant is not entitled to take credit and is also liable to interest and penalty. 5. Heard the learned counsel for both the parties and perused the records. It is not disputed that the appellant can avail the benefit of both the Notifications i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty accordingly and take credit only on the strength of duty paying documents. There is no need for any physical verification of premises, goods or records unless there is a specific intelligence suggesting evasion. 5.1 In my considered opinion, the instructions issued by the above said circular are binding on the Revenue and the Revenue cannot be allowed to argue against it. This fact has been admitted by the Commissioner (Appeals) in the impugned order, but he refused to follow the same without any justified reason. Moreover, the justification given by him for not following the Board s circular is not at all legally valid and tenable in law. The benefit of cenvat credit is sought to be denied for not maintaining separate records of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puts used in dutiable and exempted products. A distinction was made between maintain separate inventory and accounts of inventory referring to Rule 57CC(9) and Rule 6. 5.2 Further I find that the appellant s case is fully covered by the circular cited above. Moreover, the benefit of credit is sought to be denied on purely technical grounds. It is settled law that substantive benefit cannot be denied merely on technical grounds. 6. Therefore, keeping in view the facts and circumstances and the evidence on record, the impugned order is liable to be set aside and, therefore, I set aside the impugned order by allowing the appeals of the appellant with consequential relief, if any. ( Pronounced in Court on 4.12.2015 ) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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