- (1.) This order shall dispose of C.E.A. No. 174 of 2006 and C.E.A. No. 23 of 2007 because the appellant-revenue has claimed a simple question law in both the cases, which is as under : Whether in the absence of availability of sufficient balance to reverse the Cenvat credit involved on the inputs lying in stock inputs in process and inputs contained in finished goods at the time of opting out of Cenvat credit scheme is required to be paid through cash payment/PLA or not?
(2.) For convenience, facts are being referred from C.E.A. No. 23 of 2007. The assessee-respondent are engaged in the manufacture of plywood, black board core veneer, flush doors etc. falling under Chapter 44 of the First Schedule appended to the Central Excise Tariff Act, 1985. On 28-3-2003, Central Excise Staff visited the premises of the assessee-respondent and they observed that w.e.f. 1-4-2001 they had opted for Small Scale exemption under notification No. 08/2001-C.E. dated 1-4-2001 which provided for clearance of goods at Nil rate of duty availing the S.S.I. exemption in terms of the notification. The applicant-revenue took the view that in terms of Rule 57AG(2) of the Central Excise Rules, 1944 the assessee-respondent were required to pay back/reverse the Cenvat credit availed on the inputs, inputs in process and inputs contained in the finished goods lying in stock on the date of exercise of option out of Cenvat Credit Scheme. Accounting to the appellant-revenue, the assessee-respondent had in stock the inputs as well as inputs contained in final product. Alleging that the assessee-respondent was required to reverse the Cenvat credit which they failed to do, demand amounting to Rs. 88,731/- was raised. Besides the aforementioned demand another demand of Rs. 62,907/- was also raised vide order-in-original dated 12-3-2004.
(3.) The assessee-respondent filed an appeal before the Commissioner (Appeals) who vide his order dated 16-6- 2004 upheld the demand of Rs. 62,907/-but set aside the demand of Rs. 88,731/- and he also reduced the penalty from Rs. 1,51,638/- to Rs. 5000/-. The view of the Commissioner (Appeals) is discernible in the last two paras of the order dated 16-6-2004 (P-2). He has held that the order-in-original dated 12-3-2004 passed by the Commissioner (Appeals) was not sustainable in law confirming the demand for Cenvat credit in respect of inputs lying in stock, inputs contained in finished goods lying in stock as such on 31-3-2001 because the assessee- appellant had correctly availed and utilized the credit of duty paid on those inputs for payments of duty on the final products. When these final products were chargeable to excise duty during the material period, therefore, the appellant-respondents were not required to reverse the Cenvat credit of Rs. 88,731/-. The Commissioner (Appeals) placed reliance on the judgment of the Hon'ble Supreme Court in C.C.E. V/s. Ms Dai Ichi Karkaria Ltd., 1999 112 ELT 353 and set aside the order passed by the Commissioner (Appeals) and also reduced the penalty to Rs. 5000/-.;