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TMI Blog2017 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... r 9,84,799 02 Excess credit passed on by the dealer, Indian Oil Corporation since the duty amount is more than in the manufacturer's invoice 3,06,661 03 Quantity not mentioned in the invoice of M/s. Colour Chem, Pondicherry 50,544 04 BPCL Depot was not registered as a dealer 9,84,799 05 Excess credit passed on by the dealer, Indian Oil Corporation since the duty amount is more than in the manufacturer's invoice 3,06,661 06 Quantity not mentioned in the invoice of M/s. Colour Chem, Pondicherry 50,544 TOTAL 13,49,846 2. After due process of law, the original authority confirmed the demand along with interest and imposed penalty. In appeal, the same was upheld. Hence, these appeals. 3. On behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not registered. He relied upon the judgment in the case of Vimal Enterprise Vs Union of India reported in - 2006 (195) E.L.T. 267 (Guj.) and submitted that though there was a Larger Bench decision of the Tribunal holding that Modvat credit is not admissible when the dealer has not taken registration the said proposition was reversed by the judgment of Hon'ble High Court of Gujarat in the case of Vimal Enterprise (supra). Similar view was taken by the Hon'ble High Court of Punjab and Haryana in Commissioner of Central Excise, Delhi-III, Gurgaon Vs Myron Electricals Pvt. Ltd. reported in 2007 (207) E.L.T. 664 (P&H) which was affirmed by the Hon'ble Apex Court as reported in 2007 (215) E.L.T. A. 76 (SC). (ii) The next ground on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the Modvat credit is denied is that the invoice of M/s. Colour Chem, Pondicherry did not mention the quantity correctly and disallowed credit to the tune of Rs. 50,544/-. Appellants had received 675 kgs. of Hansa Red 2B Special Chemical from the Pondicherry depot of M/s. Colour Chem Ltd. The dealer invoice issued to the appellant showed the parent quantity incorrectly as 275 kgs. instead of 850 kgs. It was alleged by the department that as the quantity received by the parent suppliers as shown in invoice was only 275 kgs, the dealer could not have issued invoices for 675 kgs. The appellant adverted to letter dated 01.12.1998 issued by the parent supplier, wherein, the mistake was admitted and the invoices showing the correct quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at appellants have availed less credit than that actually available as per the invoices. The appellant procured 20 cartons of tapes from the manufacturer on payment of excise duty on which duty of Rs. 2,500/was paid. During the relevant time as per the Notification No.14/98, dated 02.06.1998, the appellants were permitted to avail Cenvat credit of 95% of amount of excise duty mentioned in the supplier's invoice. Accordingly, the appellants availed credit of Rs. 2,375/- only and did not avail credit of 2,500/- Raising this allegation, the entire credit has been disallowed. 4. The learned counsel argued that the credit has been correctly availed by the appellants and, therefore, pleaded to allow the appeal. 5.1 The learned Authorised R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid duty of Rs. 2,500/-, the credit ought to have been availed on the entire amount. 6. We have heard the submissions made by both side. Let us deal with each of the issues one by one. 6.1 The first one is regarding disallowance of credit on the ground that M/s. BPCL is not registered as a "dealer". The registration certificate is furnished along with records. On perusal, it is seen that during the relevant period M/s. BPCL was given registration 'to cure, produce, manufacture, carry one wholesale trade/business/broker or commission agent or otherwise deal in excisable goods'. As per Rule 174, during the relevant period the dealer is required to take a registration and only upon such invoices issued by a registered dealer, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it availed would be Rs. 47,144/- only. Instead of disallowing this excess credit of Rs. 47,144, the department has disallowed the entire credit of Rs. 17,684/-. The appellants admittedly having debited the excess credit of Rs. 47,144/-, the disallowance of credit on this ground is unjustified. 8. The third ground for denying credit is that the parent quantity mentioned in invoices is only 275 kgs., whereas, the quantity supplied to the appellants is 675 kgs. The appellants have submitted that it was a mistake by the supplier and the same has been clarified vide letter dated 01.12.1998 issued by the supplier. On perusal of records, we find that the parent invoices was in fact for 850 kgs, and only by mistake the same has been mentioned as 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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