TaxTMI 
TaxTMI 
2013 (10) TMI 1298
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....2013 OIO NO. 04/ COMMISSIONER/ RAJU/AHD-I/2013, dated 28-2-2013 4 M/s. Alok Textile Mills Pvt. Ltd., Plot No. 233/2, Swastik Bansidhar, Near Narol Char Rasta, Narol, Ahmedabad E/45/2010 OIO No. 32/ COMMISSIONER/ RKS/AHD-I/2009, dated 23-10-2009 1.1 Issue involved in all the above appeals is the same, therefore, these are being taken up for disposal under this common order. Appellants were simultaneously availing the benefit of Notification No. 29/2004-C.E. and Notification No. 30/2004-C.E., both dated 9-7-2004. Notification No. 30/2004-C.E. granted full exemption to various textile and textile articles subject to the condition that no Cenvat credit was taken by a manufacturer. Under Notification No. 29/2004-C.E., a concessional rate was prescribed for textiles where Cenvat credit was permissible. Under C.B.E. & C. Circular No. 795/28/2004-CX, dated 28-7-2004, it was clarified that simultaneous availment of Notification No. 29/2004-C.E. and Notification No. 30/2004-C.E. was permissible subject to the condition that a manufacturer should maintain separate books of accounts for goods availing the benefit of these notifications. However, appellants were not maintaining separ....
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....lants are in a position to demonstrate before Commissioner that the quantum of credit reversed by them was equivalent to the credit taken by them on the said input. 8. In view of the above, we allow all the stay petitions unconditionally and set aside the impugned orders and remand the matter to Commissioner for fresh decision in the light of the law declared by Hon'ble High Court of Gujarat on the disputed issue. The appellants are at liberty to place before Commissioner their submissions as regards quantum of input credit so reversed by them." 1.2 Appeal filed by the Appellant No. 4 was not remanded at any stage and is pending since its filing. 2. Adjudicating authority decided the cases in remand proceedings and again confirmed the show cause notices on the grounds that appellants have not reversed the Cenvat credit properly on pro rata basis. Adjudicating authority based his findings on verification reports given by the jurisdictional Assistant Commissioner. On appeals filed by Appellants 1 to 3, following orders were passed by CESTAT under Order Nos. A/720-722/WZB/AHD/2012 & S/858-860/WZB/AHD/2012, dated 21-5-2012 :- "7. The adjudicating authority relie....
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....s on which the alleged short reversal of Cenvat credit was worked out by Revenue. The basis was not provided by the adjudicating authority and it was held that Rs. 15,89,173/-, with respect to Appellant No. 1, Rs. 8,15,246/- with respect to Appellant No. 2 and Rs. 17,65,833/- with respect to Appellant No. 3 were short reversed. Accordingly, again the entire amounts demanded in the show cause notices were confirmed along with interest and Section 11AC penalty. Against these orders in second remand, appellants have filed the present appeals. 4. Shri Paresh M. Dave (Advocate) and Shri P.P. Jadeja (Consultant) appeared on behalf of the appellants. Arguing on behalf of the appellants, Shri Paresh M. Dave (Advocate) emphasized that the issue left in the remand proceedings was only quantification of the alleged short reversal of the Cenvat credit taken with respect to the inputs used in the manufacture of exempted goods. It was his case that the basis on which the short reversal was calculated as mentioned in Assistant Commissioner's reports was not made known to them, in spite of repeatedly asking the adjudicating authority. He relied upon the C.B.E. & C. Circular No. 858/16/2007-C....
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....levant period, indicating that the Cenvat credit required to be reversed. On time bar, it was argued by ld. AR that only on department's query, appellants informed that debit entries made in RG-23 Part II also included Cenvat credit reversed with respect to exempted goods and hence due to this suppression extended period as per proviso to Section 11A is correctly invoked along with Section 11AC penalty. 5. As a counter, advocate of the appellants argued that as per the written submissions dated 28-8-2013, filed by the Revenue now a credit of Rs. 55,94,675/-, Rs. 18,82,852/- and Rs. 19,77,942/- is proposed to be recovered from the Appellants No. 1, 2 & 3 respectively, as against the amounts originally mentioned in adjudication orders. 6. Heard both sides and perused the case records. These proceedings started in the year 2007 when show cause notices were issued to the appellants that benefit of Notification No. 30/2004-C.E., dated 9-7-2004 is not admissible as this notification applies to the goods in respect of which credit of duty paid on inputs has not been taken. It was also alleged in the show cause notices that appellants did not maintain separate accounts for inpu....
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....djudicating authority relied upon reports of the jurisdictional Assistant Commissioner, copies of which were desired by the appellants. The same were not given to the appellants and demands confirmed against the appellants by the adjudicating authority. Vide the Order dated 21-5-2012, in the second remand, this Bench has to direct the adjudicating authority to give copy of the said report of the Assistant Commissioner to the appellants to defend the case. Further, appellants wanted to know the basis on which the shortage in Cenvat credit reversal was worked out by the Department. It is observed from the chart given in Para 13.2 of the impugned OIO dated 10-11-2009 passed by Commissioner earlier that total credit reversed by the first appellant during the period December 2004 to November 2005 was more than the pro rata credit required to be reversed and calculated by the Revenue. There was, therefore, no reason to reverse any credit or demand of duty for the period December 2004 to November 2005. It was, therefore, essential to provide the basis of short Cenvat reversal calculated by the Revenue. It is further pointed out by the advocate of the appellants that as per submissions dat....