2015 (7) TMI 262

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....ave closed down their Lead plant in July 1999 and dismantled the same in December 2003 and have not reversed the credit of Cenvat availed on lead concentrate lying in stock, the officers have visited the appellants factory and have arrived at the stock position. Total quantity of lead concentrate lying in stock as on the date of closure of the lead plant was 625.940 MT and out of this, a quantity of 563.018 MT was cleared on payment of duty vide Invoice dated 29.3.2004. Remaining quantity of 62.922 MT (as per records) along with the quantity of 960 MT of lead concentrate in mixed form retrieved from plant floor lying as work-in-progress were available in stock. Department felt that Cenvat credit availed on this total of 1585.940 MT of lead ....

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.... the issue and confirmed demand for Rs. 24,66,758/-. This comprises of two portions. The first portion is Rs. 8,96,325/- attributable to the Cenvat credit availed on 563.018 MT of lead concentrate cleared on 29.3.2004. The remaining amount of Rs. 14,80,235/- is attributable to the Cenvat credit availed on 1022.922 MT of lead concentrate available in stock. The Commissioner (Appeals) confirmed the demand for Rs. 8,96,325/- taking a view that the appellant could not produce any evidence to show that this quantity of lead concentrate had been received by them prior to 1994. As regards remaining amount, he observed that there is no provision for demanding duty on the quantity lying in stock on the ground that it cannot be used by the manufactur....

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.... evidence for the same, they dropped the claim. Having regard to the facts and circumstances of the case, I consider that since the duty liability is not contested and even if it is not paid, learned counsel for the assessee has accepted the liability, the penalty can be waived. 6. Coming to the appeal filed by the Revenue, I find that the provisions in the Rule providing for payment of Cenvat credit availed in case of inputs which are written off or provisions are made for finally written off have been introduced in the statute only with effect from 7.7.2009. Even prior to this period, the Circular issued by the Board relied upon by the Commissioner (Appeals) clearly provides that only when the inputs are written off or provisions are mad....