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TMI Blog2016 (8) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... e also dealt with these items as a trader and the cenvat provisions would allow the same treatment. Further since the equal amount of credit has been paid at the time of removal of these goods, the requirement of law of reversing credit at the time of clearance of inputs as such remain satisfied. therefore, the demand and penalties are set aside. - Decided in favour of appellant with consequential relief. - E/25793 & 25794/2013-SM - Final Order Nos. 20613 - 20614/ 2016 - Dated:- 5-8-2016 - Shri S. S. Garg, Judicial Member For the Appellant : Shri M.S. Nagaraj, Advocate For the Respondent : Shri Pakshi Rajan, AR ORDER Per S. S. Garg The present appeals are directed against the common Orders-in-Appeal No. 435-436/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of duty which was not less than cenvat credit taken on the fabrics. The details of the invoices under which the jumbo rolls of fabrics were cut to the required size as per the customers requirement and cleared under invoices on payment of cenvat were submitted before the lower authorities. 2. The Superintendent of Central Excise (Adjn.) Bangalore III Division passed Order-in-Original dated 20.09.2011 in respect of show-cause notice 159/2010 and the Assistant Commissioner of Central Excise passed the Order-in-Original 24/2011 dated 29.08.2011 confirming the demand of cenvat credit of ₹ 27,557/- (Rupees Twenty Seven Thousand Five Hundred and Fifty Seven only) and ₹ 1,76,124/- (Rupees One Lakh Seventy Six Thousand One Hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Rules 2002. He further submitted that Rule 3(5) of the Cenvat Credit Rules 2004 permits removal of cenvat credit availed inputs as such on payment of an amount equal to the credit taken. The payment of duty on clearance of HDPE fabrics is payment of an amount equal to cenvat taken on inputs in terms of Rule 3(5) of the Cenvat Credit Rules 2004. He also submitted that once the demand of cenvat on the inputs cleared has been accepted, the same amounts to reversal of credit on the inputs either in terms of Rule 16(2) of the Central Excise Rules 2002 or Rule 3(5) of the Cenvat Credit Rules 2004 and the demand in the impugned order amounts to demanding cenvat on the inputs for the second time. In support of his submission he referred to Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2. Further the appellants placed reliance on the following decisions: (i) CCE, Ahmedabad Vs. Tapsheel Enterprises 2007 (216) ELT 284 (T) (ii) Venkateshwara Company Vs. CCE, Coimbatore 2006 (195) ELT 304 (T) (iii) S Kumars Nationwide Ltd. Vs. CCE, Indore 2014 (312) ELT 725 (T) (iv) NCL Industries Ltd. Vs. CCE, Guntur 2016 (337) ELT 438 (T) 3.3. The learned counsel further submitted that the process of cutting the jumbo rolls does not amount to manufacture. With the payment of duty on clearance of fabrics, the appellants have reversed the amount of cenvat credit taken and therefore the cenvat credit cannot be demanded for the second time. For this the learned counsel relied upon the following decisions: (i) Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at the time of clearance of the goods. That the items were not input is also not of much consequence inasmuch as the appellant could have also dealt with these items as a trader and the cenvat provisions would allow the same treatment. Further since the equal amount of credit has been paid at the time of removal of these goods, the requirement of law of reversing credit at the time of clearance of inputs as such remain satisfied. It is well settled that when there is no duty demand, penalties are also not attracted. 6. In the result, the demand and penalties are set aside and both the appeals are allowed with consequential relief, if any to the appellant. ( Order pronounced in open court on 05.08.2016 ) - - TaxTMI - TMITax - Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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