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TMI Blog2019 (4) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant along with interest thereon, under Rule 14 of the Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of the Central Excise Act, 1944 and Section 11AB of the Act respectively. The Commissioner has also imposed penalty of Rs. 19,17,14, 316/- upon the appellant under Section 11AC of the Central Excise Act. 2. The facts in brief are : (i) Additional Duty of Excise ("AED") is payable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 on inputs used in the manufacture of nylon tyre cord fabrics and dipped nylon tyre cord fabrics. Cenvat credit could be availed of such duty, until April 1, 2002, for payment of AED only as per Notification No. 5/94-CE (NT) dated 1.3.1994, as amended, on Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) providing that the credit earned prior to April 1, 2000, which was utilized for payment of BED, shall have to be paid back in 36 installments along with interest @13% and prescribing the method of such recovery. The appellant thereafter paid back the sum of Rs. 19,17,44,316/- in instalments with interest from July 2005 onwards. (vii) Issue of duty (AED) on, inter alia, dipped nylon tyre cord fabrics used as intermediate product in manufacture of tyres, a long standing dispute between the Revenue and tyre manufacturers, including the appellant, was resolved by the Supreme Court through its decisions in CCE Vs MRF Limited, 2005 (180) ELT 145 (SC) and CC & CE Vs J.K.Tyres & Industries Ltd, 2007 (213) ELT 492(SC) by laying down principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which duty amount, therefore, remained unpaid and was recoverable from the appellant. The proceedings under the show cause notice resulted in the impugned order. 3. Heard both sides and perused the appeal records. 4. The Ld. Sr. Advocate appearing on behalf of the appellant contended that the issue involved is fully covered in favour of the appellant by the decisions of the Tribunal in CCE Vs CEAT Ltd, 2010 (254) ELT 349(T), as affirmed by Hon'ble Bombay High Court in CCE Vs. CEAT Ltd., 2013 (288) ELT 525 (Bom) and Hon'ble Kerala High Court in Commr. of C.Ex, Cus & S. Tax Vs. Apollo Tyres Ltd., 2016 (333) ELT 10 (Ker). 5.On behalf of the Revenue the reasons and findings of the Commissioner in the adjudication order are reiterated. 6.W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remain undisturbed in its account. During July, 2005 to June, 2006, the assessee had paid an amount of Rs. 65,54,373/- every month from AED(GSI) and later discharged the same liability by payment of duty from PLA. We find that credit is intended to be spent only to pay duty. The department had not recognized debits from AED(GSI) as payment of BED. Therefore, such debits cannot be held to have affected the balance of AED(GSI) in the accounts of the assessee. Therefore, once the appellant discharged the duty liability on tyres by debiting PLA, the appellant's account stood credited with the debits initially made. A refund claim is warranted when duty is excess paid. In the instant case, the payment from AED(GSI) was not recognized as payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty liability on tyres using AED(GSI). It would have continued to have the impugned credit in its account. We also find that the Commissioner correctly held that the respondent had taken the impugned credit under valid duty paying documents under cover of which inputs had been received." 7. The aforesaid decision of the Tribunal has been upheld by Hon'ble Bombay High Court and Hon'ble Kerala High Court in Commissioner of Central Excise Vs. Ceat Limited 2013 (298) ELT 525 (Bom) and Commr. of C.Ex.,Cus & S.Tax Vs. Appollo Tyres Ltd. 2016 (333) ELT 10 (Ker). 8. By following the above decisions we set aside the impugned order and allow the appeal, with consequential relief to the appellant. (Operative part of the order was pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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