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TMI Blog2019 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... lling under Chapter 28. During the course of audit of the records of the appellant, it was noticed that they have availed CENVAT credit on the strength of invoices received from the supplier of liquefied Oxygen / Nitrogen/Argon gas which are finished products treating the same as 'inputs'. Therefore a show-cause notice dt. 11/03/2014 was issued to the appellant demanding therein CENVAT credit of Rs. 26,49,981/- availed during the period August 2009 to December 2012 under Rule 14 of the CENVAT Credit Rules, 2004 (CCR) along with interest and imposition of penalty. After following the due process, the original authority vide Order-in- Original dt. 01/12/2016 confirmed the demand of CENVAT credit of Rs. 26,49,981/- along with interest and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher value than the alleged amount of credit. He further submitted that the detailed submissions were made during the course of personal hearing and the written submissions were submitted and the copies of invoices / statements showing payment of higher duty on clearance of goods was made. He further submitted that this issue is no more res integra that when the assessee has paid duty on a higher value which has been accepted by the Department, then the Department cannot turn around and say that there was no manufacturing process and therefore CENVAT credit should be reversed. In support of this submission, he relied upon the following decisions:- i. Crompton Greaves Vs. CCE [2008(230) ELT 488 (Tri. Mum.)] ii. Emel Enterprises Vs. CCE [Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of records, it transpires that the appellant had availed CENVAT credit of Central Excise duty paid on brass sheets which were not consumed by them for any manufacturing activity but were traded. This decision is accepted by the appellant. At the same time, I do find that when the goods were cleared from the factory premises as traded goods or subsequently, appellant had reversed the cenvat credit in the form of duty on such traded goods, it would amount to non-availment of cenvat credit. This is the law settled by Hon'ble High Court of Bombay in case of Ajinkya Enterprises. In view of this, I hold that the demand confirmed under this head are unsustainable and liable to be set aside and I do so. Consequently interest and penalties are also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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