TaxTMI 
TaxTMI 
2012 (9) TMI 78
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....heir final product. During the period prior to 1.4.97, they were paying duty at concessional rate under an exemption Notification and were availing input duty credit. With effect from 1.4.97, they opted to avail the benefit of Notification No.16/97-CE under which clearances upto certain value were fully exempt from duty. At the time of switching over to full duty exemption w.e.f. 1.4.97, they had certain stock of inputs in respect of which cenvat credit to the extent of Rs.7,36,345/- had been availed . However, they did not reverse the cenvat credit in respect of these inputs and the same were subsequently used in manufacture of finished product which were cleared at nil rate of duty by availing full duty exemption. The Department was of th....
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.... ELT A 212; that show cause notice has been issued to the appellant by invoking Rule 57C and hence at this stage the Department cannot deny the credit by invoking Rule 57 H(7) of he Central Excise Rules; that in this regard, the appellant relies upon the decision of Hon ble Supreme Court in the case of C.C.E., Nagpur vs. Ballapur Industries Ltd. reported in 2007 (215) ELT 489 (SC) wherein while remanding the case to the Commissioner, it was held that it would be not open to the commissioner to invoke Rule 7 of the Valuation Rules, 1975 which had not been invoked in the SCN, that by filing fresh declaration on 1.8.97 the appellant had decided to opt out of the SSI exemption and had also written to the Department for withdrawing from the SSI ....
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.... view of this specific provision of Rule 57H(7), the judgment of the Larger Bench of the Tribunal and of the Apex Court in the case of Ashok Iron and Steel Fabricators (supra) cited by the appellant would not be applicable; that it is settled law that when correct fact have been stated in the show cause notice, quoting wrong provisions will not vitiate the same; that cenvat credit of Rs.7,36,344/- required to be paid back but not paid by the Appellant can always be recoverd by invoking Rule 57H(7), even if this rule was not invoked in the SCN , that as regards the declaration made by the appellant to opt out of SSI exemption scheme w.e.f. 1.4.97, in accordance with the provisions of the exemption Notification No.16/97-CE once an assessee ha....
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.... or contained in the finished product lying in stock. Thus, the provisions of Rule 57H(7) are applicable to the appellant s case and this has not been controverted by them. We are of the view that since the correct facts had been narrated in the show cause notice even if citing Rule 57C for reversal of cenvat credit, the appellant had been given sufficient information as to what was the charge against them and, therefore, not citing Rule 57H(7), which was the precise rule applicable in this case would not vitiate the SCN. Therefore, we hold that cenvat credit demand of Rs.7,36,344/- has been correctly upheld against them. 6. Appellant s another plea is that vide letter dated 1.8.97 they had intimated the Department of their intention to op....