TaxTMI 
TaxTMI 
2019 (2) TMI 1843
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....lhi-IV, Faridabad, by which the Order-in-Original dated 24.11.2011 and Order-in-Original dt. 16.11.2011 were modified to the extent of the impugned orders. 2. The brief facts of the case are that the appellants holding the Central Excise Registrations were engaged in manufacture of 'flavoured chewing tobacco' falling under Chapter Heading 24039910 to the First Schedule of the Central Excise Tariff Act, 1985. The appellants were also working under the 'Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010' (for short Capacity Determination Rules, 2010) and were paying duty under the Compound Levy Scheme as per duty determined on the basis of capacity of their packing machines....
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....or duty payment and reads as under:- "Provided that while paying duty, the CENVET credit shall be utilized only to the extent such credit is available on the last day of the month preceding the month for which duty is paid" In the present case, there were no restrictions on the amount of the Cenvat credit to be adjusted during a month other than prescribed in the aforesaid proviso. Therefore restricting the amount of Cenvat utilization, the basis of ratio divides at the rate of duty is not legally sustainable. 3. The learned Advocate on behalf of the appellants submits that the similar issue has been decided by this Tribunal in their own case vide Final Order No. A/53520-53521/2018-EX[DB] dt. 28.11.2018 in appeal no. E/50099/2018 & E/....
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....rrender of registration with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, for this purpose, the duty payable by him for the month in which he so ceases to work permanently shall be calculated on the pro rata basis of the total number of days in the said month and total number of days before the date of receipt of said intimation with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, and the duty paid for the month in accordance with the notification referred to in rule 7 shall be adjusted towards the duty so calculated and on such adjustment, if there is any exces....
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....of excise leviable under section 85 of Finance Act, 2005 (18 of 2005)], paid on chewing tobacco in bulk packs received in his factory on or after the 8th day of March, 2010 for use in manufacture of chewing tobacco notified under Section 3A of the Act (2) Except as provided under sub-rule (1), no CENVAT credit of duty paid on any input, capital goods or input services used in or in relation to manufacture of the notified goods shall be taken under the provisions of the CENVAT Credit Rules, 2004. (3) The CENVAT credit under sub-rule(1) may be taken immediately on receipt of bulk packs of chewing tobacco and may be utilized for payment of duty leviable under section 3A of the Act on chewing tobacco: Provided that while paying duty, t....
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....l maintain proper records for the receipt, disposal, consumption and inventory of the bulk packs of chewing tobacco used for manufacture of chewing tobacco notified under section 3A in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilised, the person from whom such bulk packs have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer taking such credit. (6) Where the CENVAT credit has been taken or utilised wrongly, the same along with interest shall be recovered from the manufacturer and the provisions of sections 11A and 11AB of the Act, shall apply mutatis mutandis for effecting such recoveries. Provided further that ....
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.... case, we find that by application of grant of refund inadmissible to the appellant needs to be refunded back to the appellant. We find that there are many decisions of the Tribunal as well as the superior Courts, that the Cenvat credit lying with the appellant is also a duty and cannot be treated separately as compared to the Revenue in PLA account. We also find in the following case which has been held accordingly: (1) CCE Vs. Bhavin Textiles - 2008 (221) ELT 44 (Guj.) (2) CCE, Trichy Vs. Maha Sree Aruna Chemicals - 2008 (230) ELT 571 (Tri.-Chennai); (3) Kundalia Industries Vs. CCE, Delhi - I - 2007 (8) STR 437 (Tri.-Del.); (4) CC & CCE, Bhopal Vs. Bombay Burmh Trading Corpn. Ltd. - 2005 (190) ELT 40 (Tri.-Del.); (5) CCE, R....