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TMI Blog2022 (2) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory for the period 11th November, 2002 to 28th March, 2003 and 27th November, 2002 to 27th March, 2003. The goods had been cleared on the basis of commercial invoices and were lying at the port for export. Admittedly, the goods had been removed to the port area on issuance of invoices disclosing the buyers name. The goods were not subjected to duty liability at the time of clearance from the factory. Since the goods had been removed from the factory area to the port area on the basis of invoices disclosing buyers name, the same were liable to be excluded from being considered as goods lying in stock . In this situation, Adjudicating Authority rightly came to the conclusion that the goods had already been removed from the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Case of the appellant, in brief, is that it was engaged in the manufacture of readymade garments, falling under Chapter heading 61 of the Central Excise Tariff Act, 1985 (hereafter referred to as the Act ). Prior to 2003, there was no Central Excise duty on readymade garments. However, in the budget presented in the year 2003, Government imposed duty on all kinds of garments, falling under Chapter heading 61 and 62 of the Act. As per Rule 3 (2) of the Cenvat Credit Rules, 2002 (hereafter referred to as the Rules ), a manufacturer was entitled to Cenvat Credit of duty paid on inputs lying in stock or in process of the inputs contained in the final products lying in the stock on the date on which any goods cease to be exempted goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit, availed and utilized by it, should not be recovered and penalty should not be imposed. The show-cause notices were duly contested by the appellant. However, the Joint Commissioner/ Adjudicating Authority, vide orders dated 06.05.2005, confirmed the demand and imposed penalty on the appellant. In appeal, the orders passed by the Adjudicating Authority were set-aside by the Commissioner (Appeals), vide its order dated 24.05.2005. Respondent challenged the said order before the Tribunal and the appeals filed by the respondent were allowed, vide the impugned order dated 22.02.2011. Hence, the present appeals by the appellant. 4. The controversy involved in the present case is as to whether the goods stored in the port area by the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription, quantity and value of the stock of inputs (whether lying in stock or in process or contained in finished products lying in stock) and subject to availability of the document evidencing actual payment of duty thereon. (2) Notwithstanding anything contained in sub-rule (1), the manufacturer, producer, first stage dealer or second stage dealer, as the case may be, referred to in the said sub-rule, who is unable to produce the document evidencing actual payment of duty, shall be entitled to avail credit, calculated in a manner referred to in sub-rule (3), on inputs falling under Chapters 50 to 63 of the First Schedule to the Tariff Act, lying in stock or in process or contained in finished products lying in stock as on 31st day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e percentage credits in terms of the said notifications; (B) the value of such finished product declared by the Assessee; and (C) the duty rate applicable to such final product in terms of Notification No.7/2003-Central Excise, dated 28-2-2003. Explanation:- For removal of doubt, it is hereby clarified that the entire amount of credit as eligible under sub-rule (1) and/or (2) shall be calculated by the Assessee himself who can take credit accordingly. 8. Facts in the present case are not in dispute. Appellant is dealing in manufacture of readymade garments. During the course of scrutiny of quarterly returns filed by the appellant for the period April, 2003 to June, 2003, it was noticed by the respondentdepartment tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis- -vis equal to the duty paid on inputs of such finished product, lying in stock or in process or contained in finished products, lying in the stock as on 31st March, 2003 by making a written declaration. However, in the present case, the Adjudicating Authority as well as learned Tribunal rightly came to the conclusion that the goods in question could not be said to be lying with the assessee in stock as they had already been removed to the port area from the factory on the basis of issuance of invoices disclosing buyers name. 9. In the facts and circumstances of the case, impugned order dated 22.02.2011 does not call for any interference. Accordingly, appeals are dismissed. Pending miscellaneous application(s), if any, shall also st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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