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TMI Blog2017 (5) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... nue can without reassessing the Central Excise duty paid at the end of the manufacturer-supplier, deny credit of the said duty paid in the hands of the recipient of such goods, on the premise that no such excise duty ought to have been paid by the manufacturer-supplier. 3. In the instant case the assessee (M/s Thyssenkrupp Electrical Steel India Pvt Ltd) had entered into an agreement with M/s Inox Air Products Ltd (Inox for short) for supply of Nitrogen & Cracked Ammonia. Inox cleared the same on payment of appropriate duty of excise and thereafter paid differential duty in respect of certain additional amounts recovered in terms of the agreement. The revenue has disputed the eligibility to credit in the hands of the assessee in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the concessional price at which clearances were made by Inox were agreed upon, subject to the undertaking by the assessee, to uplift a minimum quantity, if the assessee agreed for a lower off take, as has actually transpired, the supplier would have initially itself charged much higher price, which is represented by the invoice for the differential duty payment and consequently there was no infirmity in the assessee availing credit of the differential duty paid. Additionally, independent of the aforesaid argument it was contended that no proceedings for re-assessment and consequent refund of the alleged excess duty paid have been initiated at the end of Inox and that it is settled law that unless proceedings against the manufacturer for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be so if, duty is validly collected at an earlier stage. In this case duty was not payable at all at the place outside Goa, since no duty can be levied on job work but only on manufacture and, therefore, the Respondents are not entitled to claim any Modvat credit. Though this submission appears to be reasonable and in accordance with law, we find it not possible to entertain this submission in the facts of the present case since at no point of time the Revenue questioned the applicability of the excise duty at the place outside Goa. Those assessments have been allowed to became final and the goods have been removed from the jurisdiction of the Excise Officer at that place and brought to Goa. Now, in Goa it will not be permissible to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier inputs. That exercise has nowhere been done. If the department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into 'deposit of duty'. There is no legal basis for such presumption. The rules entitled the receipt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to avail the Cenvat credit of the duty paid by the supplier/manufacturer and the central excise authorities having jurisdiction over the recipient/manufacturer cannot review the assessment of duty at the end of the supplier/manufacturer. This judgment of the Apex Court in the case of MDS Switchgear Ltd. (supra) is squarely applicable to the facts of this case. The impugned order, therefore, is not sustainable. The same is set aside. The appeal and the stay application are allowed.
7. In view of the clear exposition of law as is evident from the aforesaid judgements, there is no merit in the appeal filed by the Revenue and accordingly the same are dismissed. CO's also disposed of.
(Order pronounced in Court on 31.03.2017) X X X X Extracts X X X X X X X X Extracts X X X X
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