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TMI Blog2019 (2) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... red to reverse the CENVAT Credit. Appeal allowed - decided in favor of appellant. - APPEAL NO: E/87658/2018 - A/85278/2019 - Dated:- 13-2-2019 - Shri Ajay Sharma, Member (Judicial) Appellant: Shri Mayur Shroff, Advocate Respondent: Shri A.B. Kulgod, Assistant Commissioner (AR) ORDER The issue to be decided in this Appeal is whether the Appellant is required to reverse/pay back the amount equivalent to the Cenvat Credit contained in respect of inputs received for use in the manufacture of final product, which are lying in stock as on 1.4.20007, as per the proviso of Rule 11(2) 11(3) of the Cenvat Credit Rules, 2004, before exercising the option for exemption of Excise duty, under notification No.8/2003-CE dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of aforesaid notification, even though they did not fulfill the condition laid down under Rule 11(2) (3) ibid. The appellant is thus ineligible for benefit of exemption under the aforesaid notification. Accordingly a show cause notice dated 29/30.4.2008 was issued to the Appellant as to why:- (i) Central excise duty on the excisable goods cleared without payment of duty from the factory by the assessee valued at ₹ 1,50,00,000/- on which central excise duty ₹ 24,62,478/- including Ed. H.S.Ed Cess should not be demanded and recovered under Section 11A of Central Excise Act, 1944. (ii) interest should not be charged/ demanded and recovered under the provisions of section 11AB of Central Excise Act, 1944, and (iii) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the same only on the ground that in view of Section 35R (1) (2) of the Central Excise Act, 1944 the appeal filed by the department against the said order before the Hon ble High Court of Judicature at Bombay was withdrawn and therefore the said decision of this Tribunal is not binding. He also submitted that the conduct of the ld. Commissioner, amounts to judicial indiscipline. He further submitted that although the issue involved in this matter is also covered in favour of the appellant in view of the law laid down by the Hon ble Supreme Court in the matter of Dai Ichi Karkaria (supra) and also of the Hon ble High Court of Punjab Haryana in the matter of CCE, Chandigarh vs. CNC Commercial Ltd.; 2008 (224) ELT 239 (P H) but sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue for the earlier financial year. Otherwise also, the Hon ble Supreme Court in the matter of Dai Ichi Karkaria (supra) has laid down that the Cenvat credit is indefeasible and there is no one to one correlation between the input credit and final product (duty paid). On the similar issue, a co-ordinate Bench of the Tribunal in the matter of CCE, Chandigarh vs. CNC Commercial Ltd.; 2006(206) ELT 874 (Tri-Del) while dismissing the Appeal filed by Revenue, observed as under:- 10. Coming to the submission of the learned DR that assessee opting for exemption must fulfil the terms of the exemption, it is to be noted that exemption is in terms of notification issued from year to year and not in terms of Rule 9(2) of Cenvat Credit Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel for the appellant-revenue of a considerable length and find that no question of law warranting admission of the appeal would arise. There are findings of fact recorded by the Commissioner (Appeals) as upheld by the Tribunal to the effect that the assessee-respondent had correctly availed and utilized the credit of duty paid by them on those inputs when these final products were chargeable to excise duty. It has further been found that there was no one to one relationship of the inputs used and the final products manufactured and cleared from the factory. It has rightly been held that the credit of duty paid on inputs cannot be confined to a particular raw material to which the credit is related and out of which a final pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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