9911796707
TMI Blog2018 (8) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposal in the order-in-original to demand the full credit taken for the period from 01.04.2000 to 16.06.2001 - the Ld. Commissioner (Appeals) has correctly ordered the re-quantification after allowing the appellants to opt out with effect from 31.03.2001. The appellant have pleaded that the refund of ₹ 40 lakhs was adjusted against the re-quantified demand of ₹ 1.43 Crores - Held that:- There was indeed an ongoing correspondence between the Department and the appellant in this regard and appellant had undertaken to submit a letter withdrawing their claim for refund of ₹ 4.38 Crores. Therefore, the appellant would be at liberty to approach the lower authorities in respect of the appellants' claims that they have paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances made to Indian Railways as required under Rule 57 of the Central Excise Rules upto 31.03.2001 and under Rule 6 of Cenvat Credit Rules, 2001. Reversing 8% appeared to be costly for the appellant as they were paying the duty heavily in PLA account, also as the modvat credit was insufficient for them, they have decided to opt out of the modvat scheme. Vide their letter dated 16.06.2001, they intimated the Jurisdictional Assistant Commissioner that they should be treated as opt out of Cenvat scheme with effect from 01.04.2001. They did not follow the correct opt out procedure. A show cause notice was accordingly issued to them denying the credit for the period from 01.04.2000 to 16.06.2001 proposing to recover entire Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered. 4. After adjusting the above three amounts, if any credit balance is available in their Modvat register, that balance amount stands expunged. If balance is not sufficient the duty aforementioned in (1) to (3) has to be paid in PLA before opting out of the scheme. Assessee may be allowed to opt out of the Modvat Scheme any time during the financial year. A corrigendum to the order dated 31.12.2013 to rectify a typographical mistake was issued on 19.02.2004. 1.1 The appellant filed appeal against the above order in appeal dated 31.12.2003 without waiting for re-computation of the demand. 1.2 The original adjudicating authority, in compliance of the directions of the Commissioner (Appeals) contained in order-in-appeal dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the amount of ₹ 40 lakhs which was appropriated should be returned to them. He also pleaded that in view of the judgement of this Tribunal in their own case as reported in Wheel Axle Plant vs. Commissioner of Central Excise, Bangalore-II-2003 (161) ELT 843 (Tri. -Bang.), no duty was payable by them. He also submitted that they have paid the duty of ₹ 4 Crore 38 Lakhs in respect of clearances to the private parties and have not sought any adjustment of that amount. He also submitted that the direction of the Ld. Commissioner (Appeals) was in accordance with law. 3. Ld. AR placed on record a copy of the letter dated 20.10.2016 received from the Joint Commissioner-Banglore-IV Commissionerate stating that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncements. During the oral pleadings, however, the Ld. Advocate for the appellant categorically submitted that they have nothing against the order of Ld. Commissioner (Appeals), which was fair. We also find that in their written submissions placed on record at the time of hearing on 19.04.2008, the appellants have stated as follows:- 5. In the first appeal before the CCE (Appeals) vide Appeal No. 42/2003 (B.II), after hearing the appellant, the appellate commissioner passed OIA No. 398/2004-CE dated 19.02.2004 modified the OIO by directing re-computation of the demand based on the directions contained therein. Learned Appellate Authority fairly directed thus: a. the appellant should reverse credit attributable to inputs, b attribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation after allowing the appellants to opt out with effect from 31.03.2001. The conditions imposed are also as per the existing modvat scheme. 6. The appellants have relied upon the order of this Tribunal in their own case in Wheel Axle Plant vs. Commissioner of Central Excise, Bangalore-II - 2003 (161) ELT 843 (Tri.- Bang.). We find that the ratio of the said case is not applicable in the present matter because in the said case, the question was not opting out of the modvat scheme, but, was whether the reversal of an amount of modvat credit under Rule 57 of Cenvat Excise Rules can be made in the absence of machinery provisions. As the facts and the legal issue involved are different in the present matter, the said judgement is not app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
