TaxTMI 
TaxTMI 
2011 (2) TMI 669
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....Rs. 1,95,546/-, Rs. 194,190 & Rs. 1,93,906/- respectively under Rule 18 of Central Excise Rules, 2002. He had purchased grey man made fabrics from local market and had sent the same directly to M/s. KTM Processor, Thane for carrying out the processes such as cutting, checking, and packaging etc. on job work basis. Such processed fabric they removed to JNPT for export to Tanzania directly from the factory premises of job worker i.e M/s. KTM Processor, Thane. The applicant followed the procedure as set out under Rule 12B of Central Excise Rules, 2002 and accordingly complied with the procedure under Central Excise Law as "Assessee" in respect of manufacture, storage, removal and for payment of central excise duty towards clearances of grey ma....
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....cks of the said 436185.47 Lmtrs. of grey man made fabrics and avail benefit of Nil rate of central excise duty under Notification No. 30/2004-C.E. (N.T.), dated 9-7-04 for clearances thereof or clear the finished fabrics made out of the said stocks of fabrics on payment of central excise duty under Notification No. 29/2004-C.E., dated 9-7-04 (effective rate of 8%) and use the said entire credit of Rs. 2,82,257/- as availed on 8-7-04 in their RG 23A Part II account. However, it was observed that the applicant continued with latter option and cleared polyster grey fabrics from the premises of M/s. KTM Processor at Tarapur for export to Tanzania under ARE-1 Nos. AG-6, AG-7 and AG-8 and paid the central excise duty of Rs. 5,84,062/- at the time....
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....02 vide Notification No. 12/2004-C.E. (N.T.), dated 9-7-04 and out of the said wrongly availed cenvat credit, the amounts of Rs. 4,98,009/- were utilized for payment of central excise duty on the clearances for export made under aforementioned ARE-1s and claimed rebate thereof under Rule 18 of Central Excise Rules, 2002. 2.2 After due process of adjudication, the Asstt. Commissioner rejected the rebate claim of Rs. 4,98,009/- and partly sanctioned the rebate claim amounting to Rs. 97,079/- to the applicant. 3. Aggrieved by the orders-in-original, the applicants filed appeals with the Commissioner (Appeals) who vide the impugned orders-in-appeal rejected the same. 4. Being aggrieved by the impugned order-in-appeal, th....
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....cepted that the fabrics were cleared before 9-7-04 i.e. before abolition of Rule 12B. All the credits availed in respect of grey fabrics received in their premises on or after 9-7-04 were in fact in transit before 9-7-04 cleared prior to 9-7-04 by the manufacturers and they have reached their factory on or after 9-7-04. Therefore in such cases where the goods were in transit it is presumed that the action taken before the change is effected. All the law which was effective and in force on the date of clearance of goods from the manufacturer's premises is applicable in such cases. The receiver is entitled to take cenvat credit in such cases as the action taken place before the abolition of Rule 12B. Same problem was also there when the modva....
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....emsp;That the order-in-original is faulty one in as much as that there is no denial of cenvat credit in the order-in-original and the order is issued only for the rejection of rebate claims. Further it shows from the order-in-original that the rebate is proper and correct as the rebate claim is accepted by the department and the claims are rejected only on one ground that the cenvat availed is after abolition of Rule 12B of Central Excise Rules, 2002. The applicants are entitled for the Cenvat Credit and at the same time once they are entitled for the Cenvat claim they are entitled for the rebate claim. Further denial of cenvat credit which was informed to the department earlier and also the officers have verified the entries in the RG 23A ....
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....ble and the rebate of duty paid by utilizing this wrongly availed cenvat credit is not admissible. 8. In this regards, Government observes that after the abolition of Rule 12B of Central Excise Rules, 2002, the applicant is not deemed to be a manufacturer after 8-7-04, so they cannot avail cenvat credit on the goods received in factory after that date. As they have utilized the wrongly availed cenvat credit, so the rebate was rightly denied by the lower authorities. The applicant has not submitted any evidence/proof to prove that the goods were in transit during that period and was received on 9-7-04. Moreover, the assessee is entitled to claim cenvat credit only on the physical receipt of the inputs in their premises and the prevai....