2017 (12) TMI 1875

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....ch were common to all units, was availed only at Thane unit. A show cause notice was raised alleging that the entire credit could not have been availed at one unit but should have been distributed to all the units. The original adjudicating authority confirmed the demand for the period 1.7.2012 to 31.3.2013 in view of the amendment to Rule 7(d) of the Cenvat Credit Rules read with Explanation 3. The said demand was upheld by the Commissioner (Appeals). However, the penalty imposed by the original adjudicating authority was set aside. UniDeritend Ltd. is in appeal against confirmation of demand while Revenue is in appeal against setting aside of penalty. 2. Learned counsel for UniDeritend Ltd. argued that the credit in respect of services h....

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....ise Act, 1944 which reads as follows:- "38A. Effect of amendments, etc., of rules, notifications or orders.Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not (a) .. (b) affect the previous operation of any rule, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, notification or order so amended, repealed, superseded or rescinded; or .." 3. Learne....

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....,- (a) If the assessee has turnover in the financial year preceding to the year during which credit is to be distributed for the month or quarter, as the case may be, the said financial year; or (b) If the assessee does not have turnover for some or all the units in the preceding financial year, the last quarter for which details of turnover of all the units are available, previous to the month or quarter for which credit is to be distributed." 5.1 It is seen that the said rule permits distribution of cenvat credit. Any duty paid by the assessee does not automatically become cenvat credit. Any duty paid by the assessee which qualifies the test of Rule 3 of the Cenvat Credit Rules, 2004 can become cenvat credit when the same is availed ....