2023 (2) TMI 661

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.... by the Commissioner (Appeals), CGST & Central Excise, Jaipur, whereby he upheld the order-in-original dated 24.11.2015 passed by the Deputy Commissioner and rejected the appellant's appeal. The operative part of this order is as follows :- "(i) I disallow and order to recover Rs. 1,36,929/- (Cenvat Rs. 1,32,941/- + Edu. Cess Rs. 2,659/- + SHE Cess Rs. 1,329/-) wrongly availed and utilized cenvat credit by M/s RMC Switch Gears Ltd., 7 KM from Chaksu, Khotkawda Road, Badodiya, Chaksu, Jaipur under the provisions of Rule 14 of Cenvat Credit Rules, 2004 read with proviso to 11A (4) of the Central Excise Act, 1944. (ii) I also order to recover interest at an appropriate rate on the amount of Rs. 1,36,929/- under the provisions....

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....t the duty so paid cannot be termed as duty, but only as an amount under section 11D of the Central Excise Act [Act], 1944, which must be deposited with the Central Government. The Assistant Commissioner of Central Excise Division - I, Jaipur obtained the following details of invoices from the appellant : Invoice No. Date of Invoice Value (Rs.) Cenvat credit taken (Rs.) Date of credit taken 0000069926 15.03.2011 5,21,680 52,573 20.03.2011 0000069927 15.03.2011 98,715 9,949 20.03.2011 0000069928 15.03.2011 3,49,948 35,267 20.03.2011 0000069929 15.03.2011 3,88,377 39,140 20.03.2011     13,58,720 1,36,929   4. A show cause notice [SCN] d....

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.... (vi) The demand is time barred and that there is no evidence of the elements required for invoking extended period of limitation ; (vii) The penalty was wrongly imposed upon the appellant. 7. Learned Authorized Representative for the Revenue supports the impugned order. He vehemently argued that the CCR provide for credit of duty excise paid and not for credit of any amount paid. He submits that when the activity of M/s Bhushan Steels did not amount to manufacture at all, it was not required to pay any duty of excise. However, it paid an amount as duty of excise and collected the amount from the appellant. Such an amount is only an amount collected by M/s Bhushan Steels representing it as duty of excise, but it is actual....

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.... manufacture at all, the officers who had jurisdiction over M/s Bhushan Steels should have examined this matter while assessing the returns filed by M/s Bhushan Steels and taken appropriate action. The officer who issued the SCN had jurisdiction over the appellant and not over M/s Bhushan Steels. Therefore, in the first place the Jurisdictional Officer cannot decide or determine if the activities of M/s Bhushan Steels amounted to manufacture or not. Therefore, the SCN itself was issued without any authority of law. No doubt, the SCN intends to recover the Cenvat credit availed by the appellant but the basis for such of recovery is the assertion that the activities of M/s Bhushan Steels, Ghaziabad, who had supplied the goods did not amount t....