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TMI Blog2016 (5) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of CCE Vs. MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT], the impugned order is liable to be set aside. It is found from the original authority's order that he is not able to ascertain the correct amount of credit taken by HMIL and the correct amount which is required to be reversed by HMIL, when that is the position, it is not known as to how he can come to a conclusion that the appellant is not eligible to take credit of the amount mentioned in the invoice. As rightly pointed out by the appellant that the jurisdictional officers of HMIL have not disputed the duty paid and the alleged excess payment has not been granted as refund. Therefore, both the lower authorities have erred in denying the credit to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to the tune of ₹ 3,13,690 for a quantity of 4.366 MTs of Coil valued at ₹ 2,15,543/-. It was stated that it is not possible to ascertain the actual amount which is required to be reversed by M/s Hyundai Motor India Limited (HMIL) as per Rule 3(5) of CENVAT Credit Rules, 2004 and further the exact amount which is eligible for credit to the appellant. The show cause notice alleged that the appellant wrongly availed the above credit during the month of March 2009 and demanded the above credit by invoking proviso to Section 11A(1) of the Central Excise Act, 1944. The notice also sought to demand interest and impose penalty under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HMIL can be questioned by the officers having jurisdiction over their unit and not by the officers having jurisdiction over the appellant. The payment made by HMIL has not been refunded or reassessed by the Department and therefore it would be incorrect to deny the entire credit to the appellant. In any case the appellant took the credit of duty paid and as mentioned in the invoice, there was no malafide intention on the part of the appellant When there is no dispute with regard to the payment of duty by HMIL, the same cannot be denied to the appellant. There is no requirement under law to inform the department before taking credit. Such a procedure has been done away with long ago. Hence, the appellant cannot be faulted for taking credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory held that the excess payment is incorrect. In the present case the officer having jurisdiction over HMIL has not disputed the payment made by HMIL and therefore the above judgement in not applicable to the facts of this case. 8. I have carefully gone through the records of the case and the submissions made by both sides. It is a fact that the appellant received the material from HMIL and they had paid the duty which was indicated in the said invoice. The appellant had taken the credit based on the proper invoice issued by HMIL. There is no dispute that Hyundai Motors India Ltd. (HMIL) had paid the said duty and the goods were cleared under the cover of the said invoice. It is also not under dispute that they are registered with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. MDS Switchgear Ltd., reported in 2008 (229) E.L.T. 485 (S.C.), the Apex Court cited with approval the following excerpts from the Tribunal s decision challenged before that Court : the rule entails the manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of respondent unit [2000 (120) E.L.T. 379 (Tribunal) = 2000 (38) RLT 179]. I do not find any provision in the statute which prohibits the respondent manufacturer of inputs from availing credit of duty paid by it as evidenced by the invoices covering the consignments of inputs. Revenue has not advanced any va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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