TaxTMI 
TaxTMI 
2016 (12) TMI 1322
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.... stock at the factory premises. This matter has now travelled to this Tribunal for the second time; on the former occasion, the adjudication by Commissioner of Central Excise, Aurangabad dated 1st December 1999, having been found to require re-determination of demand in the light of decision of Larger Bench of the Tribunal in Wyeth Laboratories Ltd v. Commissioner of Central Excise, Bombay [2000 (120) ELT 218 (Tribunal-LB)], the Tribunal, in order no. A/955-958/C-III/WZB/04 dated 11th August 2004, remanded all the issues for being heard afresh. The jurisdictional adjudicating authority, since vested in Commissioner of Central Excise & Customs, Nasik, complied with the direction of the Tribunal by issue of order-in-original no. 15/CEX/2005 d....
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....t, 1985, procures prime 'acrylonitrile butadiene styrene' (ABS) sheets as raw material from M/s Tainwala Chemicals and Plastics (India) Ltd. 'Grindings' generated in the manufacturing process are sold back to the supplier who utilizes it for production of ABS sheets which are cleared, inter alia, to the appellant-assessee. The appellant-assessee claimed that such recycled sheets has a lower price than prime material purchased by them as these do not conform to the standards for prime material and, as the financial accounting system would not accept two different values for goods of identical description, it was agreed upon that M/s Samsonite South Asia Pvt Ltd would issue debit notes to M/s Tainwala Chemicals and Plastics (India) Ltd for th....
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....e net creditor in a transactional engagement issues credit notes as intent of reducing dues and a debit note is issued by a net debtor as demonstration of intent to pay less than that on record. No useful purpose is served in issue of credit note by an entity owing debts to the other. It would appear that the appellant-assessee is a net debtor considering the substantially higher price of ABS sheets in comparison with 'grindings.' The argument advanced by Revenue that the statements recorded during investigations admitting to issue of credit notes by appellant-assessee for the difference in price of 'grindings' and which, not being susceptible to reconciliation against debit notes produced, would invalidate the debit notes as acceptable ins....
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....g these facts for loading of the value and levy of duty, if any, as per law. There is no doubting of the specificity and tenor of the direction given to the original authority. The explanation rendered by the appellant-assessee before the original authority vide letter dated 28th March 2005 appears to have been peremptorily dealt with by placing reliance on the tentative conclusions in the show cause notice instead. This cannot but be characterized as anything other than disregard of the directions of the Tribunal. The impugned order concludes 'In the absence of any substantial and accurate statistical information and the documents, I find that the debit notes issued by the assessee on account of rate difference does not establishing (si....
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....5 adverted to in the impugned order. Accordingly, we hold that the debit notes are not relevant to the price of 'grindings' but to the supply of 'inferior' ABS sheets made out of 'grindings'. Consequently, we find for the assessee and hold that the undervaluation arrived at in the impugned order has no merit. 8. The second issue that is in contention in the impugned order is the availment of credit of additional duty assessed on imports against bills of entry no. 1019 dated 20th April 1998 and no. 1051 dated 26th April 1998. We are unable to accept the contention of Revenue that additional duty paid on imported inputs was not eligible to be availed as input credit. The appellant has cited the decision of the Tribunal in Polyhose India Pvt ....
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....s stand. Even the Commissioner (Appeals) has recorded in Para 7 that there is room for difference of opinion and on that account he has set aside the penalty. In my opinion availment of Modvat credit is required to be granted and hence the impugned order is set aside by allowing the appeal, with consequential relief, if any." We also refer to the decision of the Hon'ble High Court of Madras in Commissioner of Central Excise, Chennai - I v. SPIC Ltd [2014 (305) ELT 484 (Mad.)] wherein it was held : "16. It is no doubt true that under the Scheme available from 1-4-2000, there is a specific prohibition that wherever the additional customs duty is adjusted from DEPB, the assessee would not be entitled to Cenvat/Drawback. However, in the absen....