OMKAR TRADERS Vs. COMMISSIONER OF C. EX., AHMEDABAD

JUDGEMENT

(1.) IN this case, deemed Cenvat credit of Rs. 1,36,936/- which was availed by the appellant in terms of Rule 9A of Cenvat Credit Rules has been demanded with interest as applicable and the penalty equal to the amount demanded has also been imposed.

(2.) LEARNED advocate on behalf of the appellant submits that Rule 9A of Cenvat Credit Rules which provided for availment of deemed Cenvat credit on the stock of cotton yarn, lying in stock as on 31 -3 -03 required the appellant to submit a declaration before 30-4-03 which has been fulfilled by them since they had filed a declaration on 7 -4 -03. Subsequently, Rule was amended and it was provided that where there is a difference between the stock lying as on 31 -3 -03 and 1 -4 -03, the assessee is required to file a declaration. It was also provided that where there is no difference between the stocks lying as on 31 -3 -03 and 1 -4 -03, an intimation that there is no difference in stock, would be sufficient. The whole case of the Revenue is that the appellant while submitting an intimation on 26 -5 -03 and 10 -6 -03 had not intimated that there was no difference between the stock lying as on 31 -3 -03 and 1 -4 -03, but had given that the stock as on 31 -3 -03. On this ground, the declaration filed by the appellant has not been accepted and the appellants have been required to show additional evidence to prove that the stock declared by them was lying in stock as on 31 -3 -03/1 -4 -03. For this purpose, in second round of litigation on a remand order by the Commissioner (Appeals), the appellants produced a copy of the income tax return but the same has been rejected on the ground that the return does not show break -up of stock. It was also submitted by the learned advocate that the Commissioner (Appeals) while remanding the matter, had observed that omission, if any, on the part of the appellant was only technical.

(3.) LEARNED SDR, on the other hand, submits that the fact remains that the appellants have not declared the stock lying as on 1 -4 -03 and failed to show evidence that the stock was existence actually as on 1 -4 -03.