2017 (3) TMI 12

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....pacted" & Cloxacillin Sodium Sterlite, at Rs. 1421 per kg & Rs. 1890 per Kg. The Noticee had taken credit on "Cloxacillin Sodium Compacted" & Cloxacillin Sodium Sterlite on the basis of invoices where rates ranged from Rs. 1650 to Rs. 1700 per Kg & Rs. 2450 to Rs. 2725 per kg. Since duty paid on excess price could not be treated as duty, but was a deposit with the Government, so the Revenue alleged that availment of proportionate excess credits aggregating Rs. 14,54,724/- during March, 2000 to December, 2002 was not correct. The Revenue felt that the cenvat credit should have been taken at the price fixed by D.P.C.O. in terms of section 4(1)(a)(ii) (Section 4(2) w.e.f 01.07.2000) and the appellants had taken excess credit on the basis of in....

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....e cenvat credit on the basis of the invoices issued by the supplier after payment of duty and the assessement was being reopened at the end of the recipient. He also submitted that at the pertinent time the order of the Hon'ble Bombay High Court was in operation as a result of which the D.P.C.O was not applicable at the material time and the supplier had issued the invoices on that basis. Subsequently, the High Court order was reversed in 2003. The Ld. Advocate also contended that the demand was barred by limitation as there was no suppression on their part and they had not withheld any information from the department. Since, there was stay from the Bombay High Court on the D.P.C.O order, the supplier of the goods and the appellants ....

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....Court set aside the order of Bombay High Court. Hence, the demand has been raised alleging that the cenvat credit should have been taken as per the DPCO fixed price. There is no allegation in the show cause notice that any amounts were received back by the supplier in debit notes or in any other form from the appellants. The pertinent question, therefore, is whether the Central Excise authorities can review the assessment of duty paid by supplier at the end of the recipient. This question of law has already been settled by the Hon'ble Supreme Court in the case of Commissioner of Central Excise & Customs Vs. MDS Switchgear Ltd. (Supra), in which the Apex Court held as under: "7. The Tribunal has come to the conclusion that in fact the....