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TMI Blog2022 (2) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... l. In that circumstance, the allegations made by the ld.AR during the course of argument, are not acceptable at this stage. The said calculation arrived by the ld.AR during arguments are based on record provided by the appellant during investigation but the show cause notice has not discussed any such discrepancy. Therefore, the argument of the ld.AR is only presumptive which is not required to be considered. The benefit of Notification No. 08/2003-CE dated 01.03.2003, the appellant has to fulfil the two conditions:- (a) the appellant has taken Cenvat credit on inputs lying in work in progress after crossing the exemption limit of ₹ 150 lacs and (b) the appellant has reversed the credit lying in their Cenvat credit account on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taken at the time of exceeding ₹ 150 lacs clearance and also calculation of Cenvat credit debited at the time of close of financial year in respect of closing stock. The appellant only supplied the copies of balance sheets for the last five years and ER returns for the period 2013-14 to 30.6.2017. On scrutiny of the documents, it was observed that the appellant has taken credit before crossing the limit of ₹ 150 lacs in each of the financial year for the period 2013-14 to 30.6.2017. The appellant did not provide details of reversal of Cenvat credit under Rule 11 (2) of the Cenvat Credit Rules, 2004 with respect to stocks. In view of the para 4 of the Notification, it appears that the appellant did not fulfil the condition 2(ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of Notification No. 08/2003-CE dated 01.03.2003. The matter was adjudicated, the benefit of exemption of Notification No. 08/2003-CE dated 01.03.2003 was denied. Consequently differential duty was demanded and penalty was imposed against them. Against this order, the appellant is before us. 3. Ld. Counsel for the appellant submits that the appellant has provided their balance sheet during course of investigation itself along with ER-3 returns even of availability credit after crossing the exemption limit of ₹ 150 lacs. He further submits that the total clearance of ₹ 16,10,29,819/- in five years whereas the duty involved ₹ 2,00,30,770/- and the appellant has paid a sum of ₹ 1,08,68,959/-. If they are given ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 08/2003-CE dated 01.03.2003. 5. Heard the parties and considered the submissions. 6. On careful consideration of the submissions made by both the sides before us, we find that the issue is whether the appellant is entitled to avail the Notification No. 08/2003-CE dated 01.03.2003 as amended during the impugned period in the facts and circumstances of the case. 7. To avail the said exemption, the appellant is to fulfil the two conditions:- (a) The appellant shall not take credit on inputs or inputs lying in work progress or finished goods till they have achieved the total turnover upto ₹ 150 lacs (b) On closing of the year, the appellant shall reverse the credit lying in their Cenvat credit account contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt is having a nil balance. Same is evident from the ER-3 returns for the next financial year showing opening balance of Cenvat credit at nil. In that circumstance, the allegations made by the ld.AR during the course of argument, are not acceptable at this stage. The said calculation arrived by the ld.AR during arguments are based on record provided by the appellant during investigation but the show cause notice has not discussed any such discrepancy. Therefore, the argument of the ld.AR is only presumptive which is not required to be considered. In that circumstance, we hold that to avail the benefit of Notification No. 08/2003-CE dated 01.03.2003, the appellant has to fulfil the two conditions:- (a) the appellant has taken Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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