TaxTMI 
TaxTMI 
2009 (5) TMI 788
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.... impugned period is from 19-5-98 to 22-9-01 and in the case of M/s. Camco Steels (P) Ltd., the impugned period is from 1-2-97 to 22-9-01. Both the appellant assessees have manufactured small agricultural implements for which they claimed classification under Chapter 84 as agricultural machinery and claimed nil rate of duty as prescribed under the related tariff heading. Accordingly, they also filed declaration for exemption from licensing control respectively on 9-6-98 and 15-5-96. Their premises were separately searched only subsequently by the officials of the Central Excise Department leading to the issue of the impugned show-cause notices. It is the case of the department that the impugned goods are not classifiable as agricultural machinery entitled for assessment at nil rate of duty, but the same are required to be assessed under Chapters 82 and 73 as hand tools and iron and steel items as indicated in the impugned notices. Consequently, the department demanded the impugned duty amounts which have been confirmed under the impugned orders. 3. We find that in case of M/s. Manasi Steels (P) Ltd. under initial adjudication order dated 11-11-02, the duty demand of Rs. 2,14....
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....gh, Shri S.K. Mishra, Investigating Officer in this case, from the concerned Commissionerate, also assisted the Bench in the course of hearing. 8. We find that the adjudicating Commissioner had denied the Modvat credit mainly on the ground that no declaration was filed and the relevant invoices evidencing duty payment, were not produced by the appellants. In this regard, the ld. Sr. Advocate for the appellants argues that initially, the appellants had claimed assessment at nil rate of duty under Chapter 84 and had also sought exemption from the licensing control well before the departmental authorities had initiated action by way of search etc., and hence, there was no need for following the Modvat Credit Procedure earlier on the part of the appellants, since according to them the impugned goods were not dutiable at all. He also cites the decision of the Hon'ble Supreme Court in the case of Formica India Division v. Collector of Central Excise - 1995 (77) E.L.T. 511 (S.C.), which held that consequent upon rejection of claim for non-dutiability, the assessee should be given the benefit of set-off in respect of input duty credit and the same cannot be denied on technical grou....
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....l Excise Authorities and are still lying in their custody. He further states that copies of these duty paying documents, namely invoices, have been obtained by the appellants from the department and the same have been submitted earlier before the adjudicating authority and the copies have also been shown to us in the course of hearing. The ld. SDR submits after verification from the concerned Commissionerate, that the department is not readily able to locate the seized records including the original invoices. As such, during the course of hearing, the ld. SDR and the concerned officer from the Commissionerate were asked to verify copies of the documents available with the ld. Sr. Advocate and to satisfy as to whether invoice copies available with the appellants clearly show the duty payment particulars. 10. When we resumed hearing in the afternoon, we find that the ld. SDR and the official concerned have gone through the records of the case and the documents available with the appellants and they have also verified from their office records that the Assistant Commissioner (Preventive) in the case of M/s. Manasi Steels (P) Ltd. and the Superintendent (Preventive) in the case....
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....69/- Less : Duty on inputs of exempt goods 8% of Rs. 11,03,97,166/- Rs. 88,31,773/- : Duty on inputs of goods cleared under small scale exemption Rs. 22,49,635/- Rs. 1,10,81,408/- Rs. 1,39,33,361/- The duty credits for these calculations have been taken from the above-cited two reports submitted by the Assistant Commissioner/Superintendent (Preventive) to the Commissionerate Head Quarters in the year 2005. 12. From the above calculation, we find that in respect of M/s. Mansi Steels Pvt. Ltd., the duty credit available is Rs. 2,46,21,497/- as against the admitted duty demand of Rs. 2,29,50,981/- as was quantified in the order of adjudication dated 27-10-05. In the case of M/s. Camco Steels Pvt. Ltd., the duty credit available on the basis of the above calculation is Rs. 1,39,33,361/- as against duty demand of Rs. 63,76,100/- quatified under the earlier adjudication order dated 27-10-05. We find that the duty credits available are more than the duty demands quantified by the department. 13. The ld. Sr. Advocate explains that the duty credit is on the higher side primarily o....