TaxTMI 
TaxTMI 
2019 (2) TMI 1843
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....assed by the Commissioner (Appeals), Delhi-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 ba....
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....vision which prescribes the maximum amount of Cenvat credit for 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 ....
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....ases to work in respect of all the machines installed in the factory and who has filed an intimation for surrender 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 ....
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....igher Education Cess on excisable goods leviable under Section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); (v) the additional duty 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 re....
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....(4) The CENVAT credit under sub-rule (1) shall be taken by the manufacturer on the basis of an invoice issued by a manufacturer for clearance of bulk packs of chewing tobacco from his factory. (5) The manufacturer shall 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 ta....
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....e. In view of the above judgment, the Hon'ble High Court its very much intention that the ground taken by the first appellate authority to reject the refund scheme is not sustainable in the eyes of law. By application of aforesaid ratio in the present 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) C....