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TMI Blog2018 (10) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules 2002, under Budget 2003 - appeal allowed - decided in favor of appellant. - E/736/2009-DB, E/3113/2011-DB - Final Order No. 21387-21388/2018 - Dated:- 25-9-2018 - SHRI S.S GARG, JUDICIAL MEMBER And SHRI P. ANJANI KUMAR, TECHNICAL MEMBER G. Shivadass, Advocate For the Appellant Mr. K. Veerabhadra Reddy, AR For the Respondent ORDER Per. P. ANJANI KUMAR M/s JK Tyre and Industries Ltd, the appellants, are engaged in manufacture of various sizes of Tyres, Tubes and flaps. The appellants have availed Cenvat Credit of Additional duties of Excise (Goods of Special Importance), on the tyre chord fabric procured by them, in terms of Notification No 5/94 CE-NT as amended. The credit thus availed got accumulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notices dated 4.2.2009 for ₹ 9,51,1,316 and SCN dated 13.2.2011 for ₹ 11,70,180 seeking recovery of Cenvat Credit on the grounds that it was wrongly availed, being prior to 01.04.2000 in terms of provisions of Section 88 of Finance Act (No. 2), 2004 and Section 125 of the Finance Act, 200; as per Central Excise Act and Rules as on that date, there was no provision to avail credit of AED(GSI) in a case where the final product did not attract AED(GSI). The appellants have reversed the credit during investigation Under Protest on 21.8.2008. Commissioner has confirmed the demands and imposed penalties of ₹ 50,00,000 and ₹ 50,000 on the appellant. Hence these appeals E/736/2009 and E/3113/2011. 3. The Ld. Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othi Laboratories Ltd. Vs. CCE - 2007 (78) RLT 276 3.2. The learned counsel submitted that the credit availed by them was legal and cannot be disallowed. He submitted that Rule 57AB of Central Excise Act 1944 as it stood during 2001-02 contained a restriction on utilization of AED (GSI) availed on inputs towards payment of duty of AED (GSI) only. There was no restriction on availment of credit of AED (GSI). The Cenvat credit rules 2002 as introduced also contained same restriction. Vide Notification 46/2003 dated 25.03.2003 an explanation was introduced to clarify that with the credit of AED (GSI) could be utilized for payment of excise duty. Subsequently the scheme was introduced by the Finance Act 2004 whereby a mechanism to recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) cannot be relied upon. We find that the issue is squarely settled by the Tribunal and High Courts in the case of CEAT India Ltd. and in their own case of Kankroli unit, Commissioner himself has dropped the proceedings and the Department had not filed an appeal. Therefore, it is to be held that the issue has reached finality. We find that the Tribunal in the case of CEAT India Ltd. has held as under: 1 9. The impugned credit had been legitimately earned by the assessee on procurement of inputs on payment of duty and used for payment of duty following the amendment of Cenvat Credit Rules under Budget 2003. Vide Circular No. 7/16/2003-C.X., dated 6-3-03, the CBEC had also clarified that it was considered appropriate not to put ..... X X X X Extracts X X X X X X X X Extracts X X X X
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