9911796707
TMI Blog2004 (2) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice was issued to them disallowing the credit of duty taken by them amounting to Rs. 4,30,686/- for the period from 4/94 to 6/96 and also proposing penalty and demanding interest. The case was adjudicated by the Additional Commissioner of Central Excise, Bangalore-1 Commissionerate, Bangalore, who disallowed the credit of Rs. 73,586/- and allowed credit of Rs. 3,57,100/- being Central Excise duty paid on the Mica paper, but restricted to the additional duty of Customs, in terms of Rule 57A of the Central Excise Rules, 1944. He also imposed a penalty of Rs. 5,000/- on M/s. Perry Polymers Pvt. Ltd. Revenue filed an appeal against this Order-in-Original before the Commissioner (Appeals) on the ground that the Modvat credit of Rs. 3,57,100/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law for decisions and accordingly, came to a wrong conclusion. She stated that the Commissioner (Appeals) has observed that "the issue involved in the instant case is whether the duty discharged by the 100% EOUs on their goods cleared to the DTA is a duty of Central Excise and whether the user of such inputs are eligible to take credit on such clearances." She stated that the matter is not in dispute that the duty which is discharged by the EOU on their goods cleared to DTA is a duty of Central Excise. However, for taking credit of this duty, restriction has been placed by Notification No. 177/86, dated 1-3-1986 as amended and Notification No. 5/94-C.E. (N.T.), dated 1-3-1994 which allows credit of the specified duty in respect of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Mumbai-III reported in 2000 (120) E.L.T. 800 (Tribunal - LB). 5. Shri M. Ramakrishna, learned Advocate, appearing for the Respondents pleaded that since the issue had already been decided by the Larger Bench, in the case of Vikram Ispat v. CCE (supra), the appeal may be decided accordingly. 6. We have carefully considered the submissions made by both sides. We find that in this case, the Respondents purchased Mica paper from M/s. Mica Trading Corporation Limited, which is a 100% EOU. M/s. Mica Trading Corporation Limited has paid the duty on the Mica paper, under the proviso to Section 3(1) of Central Excise Act, 1944. The said provision contemplates the levy to be an aggregate of duties of Customs, which would be leviable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OU on the goods cleared to any part in India under Notification No. 2/95; after ascertaining these two elements the Modvat credit has to be allowed to the manufacturer on the basis of the first proviso to Notification No. 5/94-C.E. As per first proviso to this notification credit shall be restricted to the extent of duty which is equal to the additional duty leviable on like goods. If the additional duty is less than the actual duty paid on the inputs cleared from 100% EOU, the manufacturer in India shall be eligible only for the credit equivalent to the additional customs duty. On the other hand if the duty actually paid by 100% EOU on inputs cleared by them is less than the additional duty of customs payable on like goods the manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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