ORDER
S.S. Kang, Vice-President
1. Heard both sides.
2. The appellant filed this appeal whereby credit of Rs. 2,01,305/- and credit of Rs. 25,766/- and credit of Rs. 5,328/- was denied to the appellant and imposition of penalty of Rs. 50,000/-.
3. The contention of the appellant is that Cenvat credit of Rs. 2,01,305/- was denied on the ground that this credit is in respect of Additional Excise duty which can be utilized for the payment of AED(GSI). During the period in dispute, i.e. 1st April 2001 to Sep. 2001, the appellant availed the credit of AED(GSI) and utilized the same towards payment of Special Excise Duty. The contention of the appellant is that the Central Excise Credit Rules, 2004 (sic) (Cenvat Credit Rules, 2004) provides that credit of Additional Duty of Excise leviable under Section 3 of Additional Duties of Excise (Goods of Special Importance) Act, 1957 paid on 1st April 2000 may be utilized towards payment of duty of excise leviable under First Schedule or Second Schedule of Excise Tariff Act. The contention is that in view of this explanation provided under Central Excise Rules 2004, the appellant rightly utilized the credit of AED(GSI) towards payment of Basic Excise Duty as well as Special Excise Duty, therefore, the demand is not sustainable.
4. In respect of the credit of Rs. 25,766/-, the contention of the appellant is that the credit was denied on the ground that they had opted for availing Cenvat Scheme with effect from 1-4-2001 and there is no evidence on record to show that the inputs regarding credit was availed prior to 1-4-2000 were used in the manufacture of goods cleared after that date. The contention is that the credit was availed on the strength of invoice issued on 6-3-2001 and the inputs were used in the manufacture of final product which were cleared after 1-4-2001. In respect of the credit of Rs. 5,328/-, the contention is that it was denied on the ground that serial number of invoices were hand written.
5. The contention of the Revenue is that during the period in dispute i.e. April 2001 to Sept. 2001 the credit taken in respect of AED(GSI) cannot be utilized for payment of Basic Excise Duty as well as Special Excise Duty.
6. In respect of other credits, the contention is that there is no evidence produced by the appellant that input received prior to 1-4-2001 were utilized in the goods which were cleared after when appellant opted for Cenvat credit which was rightly denied. In respect of credit which was availed on the basis of invoices on which serial number had hand written. The contention is that the Tribunal in the case of U.P. State Sugar Corporation Ltd. v. CCE reported in 2001 (135) E.L.T. 715 held that credit is not admissible when serial number on invoice is written in hand. In this case, the credit of Rs. 2,01,305/- was denied on the ground that this credit is in respect of AED(GSI) and the same can be utilized against the payment of AED (GSI). I find that Cenvat Credit Rules, 2004 made it clear that credit of additional duty of excise leviable under Section 3 of Additional Duties of Excise (Goods of Special Importance) paid on or after 1-4-2000 can be utilized payment of duty of excise leviable under First Schedule or Second Schedule of the Tariff. As in the present case, the credit was availed after 1-4-2004, therefore, the appellant rightly utilized the same for payment of excise duty leviable under First Schedule or Second Schedule of Excise Tariff Act. In view of this demand is not sustainable hence set aside.
7. In respect of the other credits of Rs. 25,766/- the appellant even in the present appeal could not produce any evidence that the inputs received prior to 1-4-01 on the date appellant opted for Cenvat Scheme, are utilized in the manufacture of goods cleared after 1-4-2001, therefore, this credit was rightly denied.
8. In respect of the credit of Rs. 5,328/- as the serial number of the invoice was hand written that, therefore, in view of the decision of the Tribunal in the case of U.P. Sugar State (supra), the appellants are not entitled for this credit. Therefore, the impugned order in respect of denying this credit is upheld. Keeping in view the facts and circumstances of the case, as the issue involved, I find it is not a fit case for imposition of any penalty, therefore, penalty imposed on the appellant is set aside. The appeal is disposed of as indicated above.
(Dictated and pronounced in open Court)
