Hemant Gupta, J. - (1.) THIS appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (for short "the Act") against order dated 24 -8 -2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi affirming the order passed by the Commissioner (Appeals) allowing the benefit of the Cenvat credit to the respondent -assessee. The respondent -assessee is engaged in the manufacture of Bus seats falling under Chapter Sub -Heading 3401.00 of the First Schedule to the Central Excise Tariff Act, 1985. The assessee availed Cenvat credit on plush fabrics which have been received from two manufacturers i.e. M/s. Raymond Ltd., Thane and M/s. Shamken Multifab Ltd., Mathura. M/s. Raymond Ltd. was clearing plush fabric under Chapter Heading 5801.32 attracting basic excise duty and additional excise duty @ 8% each whereas M/s. Shamken Multifab Ltd. was clearing the plush fabric under Chapter Heading 5801.31 attracting basic excise duty @ 16% and additional excise duty @ 8%. The assessee accordingly, availed Cenvat credit.
(2.) THE Adjudicating Authority issued a show cause [notice] on 12 -12 -2003 inter alia on the ground that the plush fabrics supplied by M/s. Shamken Multifab are classifiable under Chapter 5801.32 and have paid excess basic excise duty at the rate of 16% though leviable duty was 8%. It was found that assessee had claimed Cenvat credit on the basis of excise duty paid by M/s. Shamken Multifab amounting to Rs. 2,19,576/ - during the period December, 1998 to December, 2000 and, therefore, Cenvat credit claimed by the assessee is in violation of Rules 57A, 57AA and 57AB of Central Excise Rules, 1944 (for short "the Rules"). After considering the reply, the adjudicating authority returned a finding that the Cenvat credit could not be claimed by the assessee. The assessee filed appeal against the said order which was allowed vide order dated 10 -9 -2008. It was found that the assessee has availed Cenvat credit correctly on the strength of documents of bona fide duty paid and that the authority having jurisdiction over the manufacturing unit do not have any power under Modvat/Cenvat Credit Rules to reassess duty paid on the inputs received for the purpose of availing Cenvat credit. The said order was affirmed in appeal by the Tribunal as well vide order dated 24 -8 -2010. Learned counsel for the appellant has argued that in terms of Rule 57AB of the Rules, the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985 alone can be allowed as Cenvat credit. Since the proper duty of excise was @ 8%, therefore, the assessee has wrongly claimed the benefit of 16% of excise duty paid by the supplier.
(3.) WE have heard learned counsel for the appellant and find no merit in the present appeal. The learned Commissioner has rightly found that the classification of the manufacturing goods cannot be gone into by the adjudicating authority as such classification falls within the exclusive domain of the authority with whose jurisdiction, the supplier is situated. There is no dispute that the supplier has paid the duty at the rate of 16% in terms of classification under Chapter Heading 5801.31, though, another supplier supplied the goods under Chapter Heading 5801.32. Since the excise duty was paid by the supplier in bona fide understanding of the classification and thus it is a duty paid under Clause (1) of Rule 57AB of the Rules and the assessee has rightly availed Cenvat credit. In view of above, no substantial question of law arises in this appeal. Consequently, the same is dismissed.;