9911796707
TMI Blog2021 (10) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of raw material -volatile in nature, whereas the amount of CVD in the bill of entry, is a lower amount; ii) whether the show cause notice is for invocation of extended period of limitation. 2. The brief facts as per the show cause notice dated 1 April 2010 are - during the course of audit of the records of the appellant by the Department for the period 2007 - 08, it was observed that appellant have taken some excess credit of service tax as follows: - i) Rs. 3,175 vide invoice (No. 696 dated 16 August 2008 and No. 1714 dated 18 February 2008) issued by Harshy Enterprises, pertaining to clearing & forwarding charges. The amount shown in the bill have already been recovered by the shipping agent - CHA, and the amount does not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity received, being 6.595 MT, which is not supported by documents. The details of such credit taken is as follows: - B.E.No.& Date Quantity Difference Cenvat Amount Actual Qty. of BE Actual Qty. received physically Actual Cenvat Credit shown in B/E 16% 2% 1% 4% 1 2 3 4 5 6 7 8 195690 13.06.2007 95.000 95.205 0.205 8,72,112 17442 8721 - 118298 24.10.07 30.000 32.040 2.040 2,85,747 5715 2858 - 120441/- 09.01.08 60.000 64.350 4.350 585285 11705 5853 - Cenvat Difference of excess credit taken Actual Cenvat Credit taken by the Noticee 16% 2% 1% 4% 16% 2% 1% Total 9 10 11 12 13 14 15 16 8,73,995 17480 8740 -- 1883 38 19 1940 3,05,178 6104 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual quantity of inputs received. Reliance is placed on the ruling of Hon'ble Rajasthan High Court in the case of 'Union of India versus Wheelbarrow Spearing Ltd, 2008 (222) ENT 362 where the facts were that the assessee had received in the factory, the consignment of HFO which was marginally less than the actual quantity stated in the invoice, which was a normal loss on account of transit operation. The assessee had availed the modvat credit on the basis of CVD paid on the goods received by him, as per invoice. The payment was evidenced by the invoices. However the Assistant Commissioner pointed out that, to the extent the lesser quantity of HFO was received in the factory, the assessee was not entitled to avail Modvat credit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtailment of modvat credit was permissible. Unless the assessee is found to be wrong or in case of diversion of inputs received under invoice, there is no provision to avail lesser modvat credit than what had been proved to have been paid on the entire goods received and used in the factory of the manufacturer. Accordingly this ground is allowed and the demand of Rs. 25, 705 is set aside. 8.3 So far the demand of Rs. 65,660/- is concerned, the learned counsel points out that the appellant have taken lesser credit, where due to normal loss appellant have received marginally lesser quantity than that mentioned in the invoice/bill of entry, proportionately. Similarly they have availed proportionately excess credit in respect of some of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous, as revenue have sought to recover an amount of Rs. 1,04, 890 + Rs. 7,18,818/- which are been finally dropped by the court below. Further, this Tribunal found that the demand of Rs. 25,705/- is not sustainable and the same have been raised by misconception, as regards treatment of normal loss. I further find that there is no Mala fide on the part of the appellant as they have taken less credit in case of normal loss of the quantity, and have erroneously taken excess credit for the normal gain or excess quantity received. In this view of the matter I hold that extended period of limitation is not available to revenue. Accordingly the impugned order in appeal is set aside so far it have confirmed the demand and penalty. 11. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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