INDIAN ALUMINIUM CO. LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal is directed against order in appeal dated 06/09/04 that upheld the order in original vide which amount of duty was confirmed against the appellant and penalty was also imposed.

(2.) THE relevant fact that arise for consideration are appellant availed modvat credit on the Furnace oil purchased by them during the period May 1999 to October 1999 from Indian Oil Corporation. Appellants purchased this Furnace oil from the Namkum Depot, Ranchi of the Indian Oil Corporation. The invoices issued by Namkum Depot, Ranchi of Indian Oil Corporation indicated the excise duty @ 16% and collected the same from the appellant. Show cause notice was issued to the appellant for denial of the modvat credit of excess excise duty of 1% as during the relevant period the refinery paid excise duty @ 15%. The appellants resisted the show cause notice on the ground that the amount of the excise duty as indicated on the invoice was the correct and they have paid the total amount to the Indian Oil Corporation. Adjudicating authority did not accept the contentions of the appellant and confirmed the demand and imposed penalty. On an appeal, Commissioner (Appeals) also concurred of the findings of the adjudicating authority and upheld the order in original.

(3.) LEARNED advocate appearing on behalf of the appellant submits that the invoices of the depot of Indian Oil Corporation indicates an excise duty @ 16%. It is his submission that subsequently, the Indian Oil Corporation on their own have paid the total amount of duty as calculated payable from the duty paying document for the period 2/2/2000 and 14/6/2000 and issued the certificate to that effect. This would indicate the entire amount of the duty liability arising out of the short payment has been already discharged by the Indian Oil Corporation to the Government. If that is correct, and then the denial of modvat credit to appellant is unwarranted. It is also submitted that the such payment of the duty by the Indian Oil Corporation Refinery has been certified by the Superintendent of Central Excise having jurisdiction over the such refinery.