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TMI Blog2015 (5) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of goods but will upon the inherent nature of the goods. We find that basic Excise duty without benefit is ₹ 9,39,250/- + ES+ SHES. Amount confirmed is less than this amount. However, computation details are not given. Appellant may compute, after taking benefit of 0.1% permissible limit and pay the differential amount and interest. We also note that equal amount of penalty has been imposed under Rule 15(1) of Cenvat Credit Rules, 2004. Keeping in view the nature of the dispute and the fact that earlier department has allowed such losses; we do not consider it a fit case for imposition of penalty under Rule 15(1) of Cenvat Credit Rules, 2004, penalty imposed is therefore, set aside - Appeal disposed of. - E/117/2012-Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however demand was confirmed from December, 2008 to March, 2009 which was within the normal period of limitation. In the order demand for the said period, interest was confirmed. Penalty equal to duty, i.e., ₹ 8,37,482/- was also imposed under Rule 15(1) of Cenvat Credit Rules, 2004. Aggrieved by the said order, the appellant is before us. 2. Ld. Counsel for the appellant s contention is that the department has prescribed a limit of 0.1% in respect of lubricated oil base stock vide Board Letter No. 11-A/6/70/CX.8, dated 30-4-1971. He further submits that these limits were prescribed when the warehousing provisions were applicable to the petroleum product and goods were moved from refinery to warehouse or from one warehouse to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Order-in-Original while discussing test laid down by the Larger Bench of this Tribunal, ld. Commissioner has held that Cenvat credit availed and utilized on short receipt of base oil in excess of 0.1% is not permissible and hence the same is recoverable from them. It was further submitted that though the ld. Commissioner has held that Cenvat credit availed and utilized on short receipt in excess of 0.1% is sustainable but has confirmed the demand without extending the benefit of 0.1%. 3. On the other hand, learned AR submitted that loss in case of base oil is far less compared to product like Naphtha and cannot be permitted to the extent of 1%. He further submitted that Hon ble Bombay high Court was dealing with Naphtha and not base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench decision. In nutshell, the conclusion is that Cenvat credit availed and utilized on short receipt of base oil in excess of 1% is not permissible. We do not find anything wrong in the said findings. In our view the said limit is in accordance with the instruction issued by the Central Board of Excise and Customs on the subject. We also agree with the ld. AR that the limits will not be different in case of movement of goods which are duty paid or movement of goods which are non-duty paid. Such losses will not depend upon duty paid or non-duty paid nature of goods but will upon the inherent nature of the goods. We therefore, reject the contention of the Counsel of the appellant that the limits prescribed are applicable only for non-d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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