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TMI Blog2018 (10) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT Credit availment of ₹ 15,34,147/- and ₹ 1,18,544/- (AED(T)) by the appellants as shown in their ER-3 returns filed on 03.02.2004, has however found fault with some of the availments based on alleged ineligible documents like invoices issued by depot which is not registered, invoices not issued as per Rule 11 of the Rules and invoices issued prior to the date of registration, amounts to ₹ 6,98,444/- only. Thus, less than half of the amount claimed as CENVAT Credit by the appellant in their ER-3 returns amounting to ₹ 6,98,444/- was disputed by the Department. Penalty u/s 11AC - Held that:- Though the appellants had failed to discharge the Central Excise duty, they cannot be saddled with the intention to evade payment of duty for the reason that they had enough CENVAT Credit in their accounts for the disputed period so as to enable them to pay the duty - the allegation of suppression of facts with intention to evade payment of duty so as to impose penalty under Section 11AC is absent in the present case. The equal penalty of ₹ 12,30,993/- is therefore set aside. Appeal allowed in part. - E/00155/2012 - 42514/2018 - Dated:- 1-10-2018 - Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed by the Original Authority vide Orders dated 01.04.2006 and 14.02.2006 respectively. In further appeal, the Commissioner (Appeals), vide Orders-in-Appeal dated 29.08.2006 and 28.08.2006, had dismissed the appeals for non-compliance of stay order. On further appeal to CESTAT, Chennai vide Final Order Nos. 91 and 92/2007 dated 31.01.2007, the matter was remanded to the Commissioner (Appeals) to dispose of both the appeals on merits without insisting on pre-deposit. In de novo proceedings, the Commissioner (Appeals) vide Orders-in-Appeal Nos. 45 and 46/2007 dated 08.08.2007 further remanded both the cases for re-adjudication. In the de novo Order-in-Original No. 08/2010 dated 11.08.2010, the proposals in the respective Show Cause Notices were once again confirmed by the adjudicating authority. In appeal, the Commissioner (Appeals) vide the impugned Order dated 11.11.2011 inter alia ordered as under : (i) Confirmed the duty demand of ₹ 12,30,993/-, but allowed undisputed credit of ₹ 9,54,247/- to be appropriated against the duty demand. (ii) Quashed the self-assessment made in ER-3 returns filed on 03.02.2004 and held the outcome of Show Cause Notice Nos. 1 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made, again duty cannot be demanded to this extent on the ground that CENVAT Credit utilized for payment of duty was disallowed. This amounts to double taxation, once demanding CENVAT Credit and second time by demanding duty. If CENVAT Credit is repaid, that itself will amount to payment of duty and there should not be a separate demand for duty. The Hon ble Tribunal in the case of Tiwati Sugar Complex Vs. C.C.E., Meerut 2009 (247) E.L.T. 519 held that it is not proper to demand duty once on the ground that the credit has been taken wrongly and then again on the ground that the same amount has been utilized towards payment of duty. (v) The disputed CENVAT Credit can be classified into three categories as under : - Category Reason Amount (in Rs.) Category A Manufacturer depot not registered 25,305/- Category B Credit taken based on invoice issued by registered dealer M/s. Kesharinandan Knit Fabrics (P) Ltd., which does not contain details such as date and time of removal, mode of transport, vehicle registration No., duty amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary, 2004. While filing the returns, it was shown as if they had taken the CENVAT Credit to the tune of ₹ 15 lakhs and utilized a part towards payment of duty. Only after taking all these aspects into account in the de novo adjudication also the adjudicating authority had confirmed the amount of ₹ 12,30,993/- with interest and had also disallowed CENVAT Credit to the tune of ₹ 6,98,444/-. 5.2 The Ld. AR points out that the Commissioner (Appeals) had upheld the demand of ₹ 12,30,993/- in respect of the goods cleared by them, however, has given considerable relief to the appellants and allowed appropriation of CENVAT Credit of ₹ 9,54,247-/ not disputed in the Show Cause Notice dated 02.02.2005 against the said demand. Ld. AR therefore submits that the impugned Order is there very fair and just and does not require any interference. 6. Heard both sides and have gone through the facts. 7. We note that the period of dispute relates to April, 2003 to December, 2003. During the disputed period, invoices for clearance of goods from the factory were required to be done so under cover of an invoice in conformity with Rule 11 of the erstwhile Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Departmental letter requesting to produce documentary evidence for passing on credit to appellant, a major supplier M/s. Kesharinandan Knit Fabrics (P) Ltd. vide their letter dated 14.05.2010 have submitted ledger copies, certificates issues regarding the credits, copy of their returns, etc. We find from the details submitted by the said supplier that they have also indicated the name of the manufacturer from the Original manufacturer of the goods which had then been supplied to the appellant; the corresponding CENVAT Credit involved is ₹ 6,72,504/-, which is the predominant portion of the disputed amount, has thus been satisfactorily explained by the supplier of the inputs. Even the remaining disputed credit of ₹ 25,305/- relating to invoice issued by supplier depot which was not registered and ₹ 635/- relating to invoice issued by a supplier before registration, are all curable defects. It has been held in a plethora of decisions that aberrations of this nature are not fatal to the availment of CENVAT Credit by the recipient. 9.3 Viewed in this light, we find that the appellants are very much eligible to avail the remaining disputed CENVAT Credit amount of & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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