2024 (3) TMI 124

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....s viz., polypropylene woven fabrics, webbing, sacks, etc., falling under Chapter 39 and 54 of Central Excise Tariff Act, 1985. They have availed CENVAT credit on the inputs received from M/s. Reliance Industries Limited, Jamnagar, an 100% Export Oriented Unit (EOU) on the amount of duty paid by the said unit by availing the benefit of Notification No.23/2003-CE dated 31.3.2003 read with Notification No.22/2006-CE dated 1.3.2006. A show-cause notice was issued on 20.2.2009 to them by the Additional Commissioner of Central Excise alleging that they have wrongly availed credit amounting to Rs.11,16,701/- during the period from July 2007 to January 2008, which was proposed to be recovered along with interest and penalty. In response to the said....

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....the Tribunal in the case of Commissioner of Central Excise, Bangalore vs. Andhra Steel Corporation Ltd.: 2002 (145) ELT 567 (Tri.-Bang.). Further, he submits that this Tribunal in the case of Emcure Pharmaceuticals Ltd. Vs. CCE, Pune: 2008 (225) ELT 0513 (Tri.-Mumbai) has held that an assessee is eligible to avail CENVAT credit of duty paid on the Education Cess by an 100% EOU under Rule 3(7)(a) of the CENVAT Credit Rules, 2004. Further, he submits that the first show-cause notice issued on 20.2.2009 invoking extended period of limitation and the second show-cause notice also on same set of facts issued invoked extended period of limitation is unsustainable in view of the principles of law laid down by the Hon'ble Supreme Court in the case ....

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....as issued by the Commissioner alleging computation of demand itself is incorrect. The second show-cause notice has also been issued invoking extended period of limitation which included the period of earlier show-cause notice dated 20.2.2009. The learned advocate has vehemently argued that the authority cannot issue second show-cause notice when the first show-cause notice itself raised the issue of inadmissible CENVAT credit, hence hit by the principles of res judicata. We do not find substance in the argument of the learned advocate for the appellant in as much as the first show-cause notice had not been decided confirming the allegations and the demand proposed therein and not resulted in an appealable order. During the pendency of the a....