2018 (7) TMI 419

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....dated-22/02/2007 vide which the Order-in-Original No.34/03 dated-29/05/2003 was remanded to original authority for re-determination of the duty liability against the appellant after allowing them duty credit on the input used in the impugned goods and also taking into account the credit available in respect of duty paid on the impugned goods. 2. Brief fact of the case is that the respondent assessee had been availing the benefit of Notification No.281/86-CE dated April 24, 1986 as amended by Notification No. 64/94-CE dated-1.3.1994 for availing the exemption from payment of Central Excise duty on capital goods manufactured within the factory of production. 3. The benefit of captive consumption under these notifications were from 1/3/1....

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....t of all conditions envisaged in the modvat scheme. Further, the Ld. D.R. has relied the decision of Nitin Spinners Ltd. Vs. Commr. of Central Excise, Jaipur-II [2017 (355) ELT 562 (Tri.-Delhi) wherein in para 13 it is held that availability of credit cannot be presumed in order to contesting the duty liability of the appellant assessee which in term is applicable to the provisions of Act and notification thereon. Relevant para 13 of the aforesaid order is reproduced below: "......13. The appellant-assessee emphasised that the demand is not tenable as there is revenue neutral situation resulting no addition to the Government revenue. We find that the concept of revenue neutrality cannot be considered as a bar for non-confirmation of tax ....

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....ondent assessee has stated that the Commissioner has done the adjudication as per the remand order, wherein direction was limited to verify the availability of modvat credit in respect of input and capital goods. The appellant assessee had been able to demonstrate the sufficient documentary evidence to prove that the credit is rightly available to them and the same has been considered appropriate by the Adjudicating authority. He further relied following case laws in support of his contention. (i) Commr. of Central Excise, Pune Vs. Coca-Cola India Pvt. Ltd. - 2007 (213) E.L.T. 490 (S.C.) (ii) Commr. of Central Excise & Customs, Vadodara Vs. Narmada Chematur Pharmaceuticals Ltd. -2005 (179) ELT 276 (S.C.) (iii) Synpol Products Ltd. ....