2015 (10) TMI 1692

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....izers which are fully exempted. During the course of manufacture of fertilizer, a bye-product viz. Phospho Gypsum emerged and it was cleared on payment of duty. The adjudicating authority in his order demanded an amount of Rs. 56,69,63,886/- being 8% & 10% of the value of exempted goods for the period from December 2004 to February 2008 and also imposed equal penalty under Rule 15 (2) of CCR, 2004. 3. Ld. Senior Counsel representing for the appellant submits that as per para-5.1, pages 9,10 of the OIO, the adjudicating authority in his finding has held that input services in question covered in Annexure I & II to SCN were used by appellants exclusively in relation to manufacture of exempted goods and services utilized in fertilizer plant. ....

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....hey have already reversed. What is demanded by the adjudicating authority is on input service used in both exempted as well as dutiable goods as they have not maintained separate accounts. He also submits that application submitted by appellant was not brought to the knowledge of adjudicating authority. Therefore, he rightly demanded 8% & 10% of the value of exempted goods. He relied on the Hon'ble Bombay High Court's decision in the case of CCE Thane Vs Nicholas Piramal (India) Ltd. - 2009 (244) ELT 321 (Bom.). 5. After hearing both sides, prima facie, we find that the issue relates to reversal of cenvat credit availed on input services used for manufacture of both exempted and dutiable final products under rule 6(3) (b) of CCR. T....

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.... the Hon'ble SC in the case of Balarpur Paper Industries Ltd. and/ relied upon by the Hon'ble High Court of Madras in the case of Commissioner of Central Excise, Coimbatore Vs. CESTAT, Chennai. In the light of the above, I am unable to accede to the request of the assessee to consider the amendment of Rule 6 and grant the consequent relief claimed under it." It is evident that the adjudicating authority has stated that the application filed by the appellant, not produced any order against the application and failed to consider the retrospective amendment. Further, he also held that input services availed by the appellants were used exclusively in the manufacture of exempted goods i.e. fertilizer. If the appellants have used the inp....