2005 (8) TMI 30

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....nder section 11AC of the Central Excise Act, 1944 for the excess availment of Modvat/Cenvat credit during the period after 01.04.2000." 3. The short controversy that arises in this case is that the respondent - assessee was in receipt of consignment of HFO in his factory from the importer under relevant invoice evidencing the payment of Counter Vailing Duty on the goods consigned under that invoice by the importer. The respondent - assessee was entitled to avail modvat credit on that basis. 4. The facts which are further necessary for present purposes are that the assessee had received in factory the consignment as a whole directly, but actual quantity of HFO was marginally less than the actual quantity stated in invoice resulting in ....

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.... counsel for the respondent - assessee on the other hand has urged that in the facts and circumstances, there being no case of diversion of the goods from the place of commencement of journey until the place of receipt in the factory and full utilisation of the quantity of input received in the factory for the purposes of manufacturing the end product, the assessee on the basis of CVD paid by the importer on such goods as per invoice is eligible for availing modvat credit.  It was also urged that in the facts and circumstances, the entire CVD was paid in respect of the quantity of goods received by the assessee in his factory and utilised by him and not on any other part of the commodity. 8. Having considered the rival contentions, ....