TaxTMI 
TaxTMI 
2010 (7) TMI 397
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....d edible preparations. During the course of EA-2000 Audit, on verification of Dealers ' Ledger Accounts, it is noted that the appellants were collecting some amounts by debiting the Dealers Ledger Accounts for breakages and for unsorted glass bottles. The department held a view that duty is payable on these amounts. Accordingly a show cause notice was issued to the appellants. The impugned order confirmed the reversal of CENVAT credit along with interest and imposed penalty. 4. Aggrieved by an order of the adjudicating authority, the appellant preferred and appeal before the learned Commissioner (Appeals). Learned Commissioner (Appeals) after considering the oral and written submissions made by the appellant before him upheld the ord....
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.... of the learned Commissioned (Appeals) which are as under :- "(7) I find that the appellants are collecting amounts for the breakages of glass bottles, which were cleared from the factory after filling with the aerated waters. In my view the glass bottles would have different ages profiles i.e. they would have been brought into the factory on different dates. Therefore, these bottles with different age are CENVAT credit availed inputs, which are used in the production of the final products, being returnable in nature the Cenvat credit availed doesn't get fully utilized in one go but through a number of iterations. The law does not prescribe the number of iterations after which they could be said to have been fully utilized. Moreover ....
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....000/- only." It can be seen from the above reproduced portion that the learned Commissioner (Appeals) and the adjudicating authority have proceeded on the ground that the compensation received by the appellant include the cenvat credit. I find that there is nothing on record to indicate that there was inclusion of cenvat credit in the compensation amount. In the absence of any evidence indicating that the compensation received by the appellant would include the amount of cenvat credit taken on the bottles, the findings recorded by the learned Commissioner (Appeals) are unsustainable. Be that as it may, I find that there are no provisions in the Cenvat Credit Rules 2004 for recovery of pro rata cenvat credit availed on the bottles. Provisio....