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TMI Blog2017 (6) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... 21936 to 21938/2015 - Misc Order No. 20080-20084/2017 - Dated:- 7-3-2017 - Mr. S.S. Garg, Member (Judicial) and Mr. V. Padmanabhan, Member (Technical) Shri Joseph Kodianthara, Sr. Advocate, Shri Anna Joseph, Advocate for the appellant. Shri Mohammed Yousaf, Addl. Commissioner(AR) for the Respondent. ORDER The appellant has filed these five appeals against common Order-in-Original dt. 04/06/2015 in which the learned Commissioner disallowed inadmissible CENVAT credit wrongly availed by the appellant amounting to ₹ 3,39,84,531/- and ordered for its recovery under Rule 14 of the CENVAT Credit Rules 2004 read with Section 11A of the Central Excise Act, 1944. The appellant also moved miscellaneous applications praying f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicability of relevant laws and precedents, are left open. The learned Senior standing counsel for the Department points out that one of the issues raised appears to be covered against the assessee in terms of the judgment of a single Bench of this court in WP(C) No.22732 of 2016 dated 14.07.2016 (M/s. A.M. Motors Vs. Commissioner of Central Excise). That is also an issue which can be brought to the notice of the Tribunal. These appeals are ordered accordingly. 2. In compliance to the direction of the Hon'ble High Court, the matter was heard on 09/02/2017. On behalf of the appellant Shri Joseph Kodianthara, Sr. Advocate was heard and the Revenue was represented by Shri Mohammad Yousaf, Addl. Commissioner(AR). 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of inadmissible CENVAT credit:- Sl.No. SCN dt. Credit disallowed (RS.) 1. 20/04/2012 5,35,31,904 2. 31/10/2012 5,67,24,796 3. 02/05/2013 6,20,42,868 4. 30/10/2013 4,67,76,213 5. 14/04/2014 23,39,84,531 4. In the Interim Order passed by the Tribunal, the appellant was directed to deposit an amount calculated @ 7.5% of the total CENVAT credit sought to be reversed as a mandatory pre-deposit under Section 35F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with the amendments made to the appeal provisions by the Finance Act, 2014. Para No.3 is reproduced below: 3. Payment made during investigation : 3.1 Payment made during the course of investigation or audit, prior to the date on which appeal is filed, to the extent of 7.5% or 10%, subject to the limit of ₹ 10 crores, can be considered to be deposit made towards fulfillment of stipulation under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962. Any shortfall from the amount stipulated under these sections shall have to be paid before filing of appeal before the appellate authority. As a corollary, amounts paid over and above the amounts stipulated under Section 35F of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of clearance of the tubes and flaps. The dispute in the present case is that the CENVAT credit is inadmissible on the duty paid on tubes and flaps since these are not in the nature of inputs or accessories. When the same tubes and flaps are cleared, excise duties are already paid. It is only fair to consider such payments of excise duty at the time of clearance as amounting to reversal of the credit even if considered as irregularly taken. From the Chartered Account certificate submitted by the appellant, we note that almost the entire credit taken stands reversed in the process of clearing tubes and flaps. We are also of the view that such payments made can be counted towards satisfying the requirements of Section 35F in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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