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TMI Blog2017 (12) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... it is possible that goods may be sold at a loss and therefore duty paid in respect of such goods can be less than the credit taken by the appellant. The proviso to the sub rule has been introduced to take care of such situation. It is possible for a dealer to misuse the rule by making the sale of loss making goods against the Cenvatable invoice and profit making goods by reversal of credit. In those circumstances there will be revenue loss. Appeal dismissed - decided against appellant. - E/189/08 - A/91118/2017 - Dated:- 30-11-2017 - Mr. Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Roshil Nichani, Advocate for the Appellants Shri. H.M. Dixit, Asstt. Commissioner(A.R.) for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever they were issuing Cenvatable invoice. However, in the cases where they were issuing commercial invoice clearances were made after reversing the Cenvat credit element on the said goods. 2.2 He argued that in view of the above it cannot be said that they have withdrawn the option exercised for clearances of goods under rule (4A). He argued that by virtue of Clause (a) of Rule 3(4A) clearances under the said clause cannot be compared to those of a manufacturer, for the purpose of availing Cenvat credit and clearances of the goods. 2.3 Ld. Counsel argued that the impugned order is not a speaking order insofar it does not deal with the issue of manufacturer and legality of clearance of goods, as such, by deemed manufacture. Ld. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are cleared by him. 3. Ld. AR. relies on the impugned order. 4. We have gone through rivals' submissions. 5. Rule 3(4A)(a) of Cenvat Credit Rules, 2002 [(4A) Notwithstanding any thing contained in these rules, (a) a first or second stage dealer, dealing exclusively in goods falling under Chapter 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 or 63 of the First Schedule to the Tariff Act, may, at his option, remove such goods, whether or not after undertaking activities such as packing, repacking, on payment of an amount equal to the duty of excise, which is leviable on such goods at the rate applicable on the date of removal and on the value determined for such goods under sub-section (2) of section 3 or section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the credit at all. They have relied upon Apex Court in case of M/s. Chandrapur Magnet Wires(supra) in this regard. We find that while Apex court held that reversing the credit amounts to not taking credit at all in the context of duty payment. In the instant case such interpretation would make proviso to Rule 3(4A)(a) of Cenvat Credit Rules, 2002 otios. In these circumstances such interpretation cannot be accepted. Legislature has provided the rule keeping all the factors in mind. Any interpretation which makes part of the text of law for otios cannot be considered a proper interpretation. 5.2 Next argument of the appellant is that there would be no revenue loss. This is not correct presumption. Once the option to pay tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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