2004 (3) TMI 225

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....st Appeal No. E/3894/2003-NB(S) has been filed by the assessee vide which he has challenged the confirmation of duty on clinker and imposition of the penalty. While the other Appeal No. E/3340/2003-NB(S) has been filed by the Revenue challenging the correctness of a part of the impugned order of the Commissioner (Appeals) dropping the demand regarding 8% of the value of the goods for having availe....

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.... It is also clear from the record that the assessee did not pay any duty on clinkers used by them captively in the manufacture of such cement cleared by them under the above said exemption Notification No. 2/2001. 3. Through the impugned order, the Commissioner has dropped the recovery of 8% but confirmed the duty payable on clinkers. So far as confirmation of duty on clinkers is concerned, in my....

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....ared without payment of duty and the inputs used in the cement manufactured and cleared on payment of duty. Since the assessee failed to maintain such a record, the reversal of the credit by them on pro rata basis could not be accepted. The assessee was required to pay 8% of the value of exempted goods. The plea of the assessee that the amount at that rate payable would come to more than duty exem....

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....did not stand satisfied and the view taken by the authority below in this regard is erroneous. The Board's Circular No. 591/29/2001-CX, dated 16-10-2001 that Department can only recover the credit on the inputs gone in the exempted goods is not of any avail the assessee in this case for having failed to maintain the record, as required under the Rules. 5. Regarding the imposition of penalty, the ....