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TMI Blog2009 (1) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/-. Out of total Cenvat credit of Rs. 1,56,735/- whose demand has been upheld, the Cenvat credit of Rs. 2,655/- is the credit taken on the basis of the invoice of registered dealer M/s. Tide Water Oil Co., Ghaziabad which according to the Department had been paid in excess of duty actually payable by the manufacturer. 2. Heard both the sides. 2.1 Shri Bipin Garg, Advocate, the learned Counsel for the Appellant made the following submissions :- (1) So far as the eligibility of welding electrodes used for repair and maintenance of the sugar machinery for Cenvat credit is concerned, the Cenvat credit is available in respect of the same in view of Hon'ble Rajasthan High Court's judgment in the case of Hindustan Zinc Ltd. v. Union of India r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of this, it is the Hon'ble Rajasthan High Court's judgment in the case of Hindustan Zinc Ltd. v. Union of India, which would be applicable. (3) As regards denial of Cenvat credit of Rs. 2,655/- taken on the basis of the invoices issued by M/s. Tide Water Oil Company, Ghaziabad, this credit has been denied on the ground that this amount is in excess of the duty payable on the goods cleared under those invoices on the basis of assessable value shown therein. This action of the Department is incorrect as it is settled law that the assessment cannot be revised at the end receiver of the goods. In this regard, reliance is placed on the Tribunal's judgment in the case of Ruptex Mineral Water Pvt. Ltd. v. Commissioner of Central Excise, Jaipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- out of which an amount of Rs. 41,717/- had been paid even prior to the issue of show cause notice and this allegation has been upheld. In view of the removal of Cenvated inputs without payment of duty, some penalty has to be imposed. Therefore, there is no case for setting aside of penalty. 3. I have carefully considered the submissions from both the sides. So far as first issue is as to whether welding electrodes used for plant and machinery are eligible for Cenvat credit is concerned, I find that the issue stands decided by the Hon'ble Rajasthan High Court in the appellant's favour in the case of Hindustan Zinc Ltd. v. Union of India (supra). Though the learned Departmental Representative have pointed out that on this very issue, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E v. MDS Switchgear Ltd. (supra), the quantum of duty already determined by the Jurisdictional Officer of the supplier unit cannot be contested by the officer incharge of recipient unit. When the Department has not challenged the assessment of duty at the supplier's end, it would not be correct to deny Cenvat credit on the basis of the invoice issued by the supplier on the ground that the duty paid under that invoice was not payable. In view of this, I hold that Cenvat credit of Rs. 2,655/- is also admissible to the Appellant. 5. As regards, the question of penalty, the Commissioner (Appeals) had reduced the penalty from the earlier amount of Rs. 3,61,388/- to Rs. 30,000/-. However, even though the Cenvat credit of Rs. 1,56,735/- has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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