9911796707
TMI Blog2001 (2) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... adduce two grounds. He submits that the first ground was for classification of gobbing stirrers; that its classification was accepted by the Customs under Chapter sub-heading 8475.90 while levying CVD at the time of import of the product. He submits that the second ground was that there was no time limit for taking Modvat credit on the capital goods in terms of the Board s Circular dated 23-4-1996. He submits that these additional grounds are based on the records already available with the authorities and are part of the appeals. 4. Shri S.K. Das, ld. JDR has no objection. 5. After hearing both sides the application for two additional grounds is allowed. After allowing the miscellaneous application, with the consent of both sides, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed on 17-1-1996 and sold in 1997 under Invoice No. 55014, dated 4-6-1997. He submits that since these were capital goods and there was no credit under the Modvat scheme available on two gobbing stirrers imported and installed in 1993 hence no Modvat credit was taken. He submits that the third gobbing stirrer was installed on 5-5-1995 and removed on 12-2-1997. He submits that at the time of removal of their gobbing stirrer, duty was paid though no duty was payable. He submits that on this gobbing stirrer the appellants had paid Rs. 14,39,487/- as duty. He submits that another gobbing stirrer which was purchased in 1994 on which Modvat credit as capital goods was taken, was installed on 5-5-1995 and sent for repairs to USA and that, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Counsel also submits that classification of the goods under Chapter sub-heading 8475.90 clearly shows that the goods were parts. He submits that no doubt the goods are used in the structure of glass furnace. He submits that the glass furnace is not the goods inasmuch as it is made of refractory materials brick by brick and gets embedded on earth, therefore, the glass furnace cannot be termed as goods. He submits that since gobbing stirrer is part of structure it has correctly been classified as part under Chapter sub-heading 8475.90. He submits that since the goods are parts, therefore the credit could be taken even before installation of the goods in terms of sub-rule (7) of Rule 57Q. 10. Ld.Counsel submits that the fact remains tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Friends Wire Industries reported in 1995 (80) E.L.T. 219. In such a situation, the appellants cannot be held guilty of suppression of facts with intent to avoid payment of duty. He submits that no penalty was imposable on the appellants as there was no intent to evade payment of duty inasmuch as immediately on payment of duty, the appellants become entitled to take Modvat credit. 11. He submits that a SCN was issued in this case on 12-10-1999 whereas Modvat credit was taken on 17-1-1997 and thus the entire demand was beyond period of six months. 12. Summing up his argument, ld. Counsel submits that the adjustment of duty of Rs. 13,54,277/- may be permitted against their payment of duty Rs.14,39,487/- in view of the fact that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the lower authorities have rightly held that Modvat credit was taken before installation of the parts in the machinery and hence Modvat was incorrectly taken. 14. On the question of adjustment of duty, ld. JDR submits that there was no provision of adjustment of duty paid on one item to be adjusted against other item. He submits that the appellants in the instant case should pay duty amounting to Rs. 34,61,193/- and Rs. 13,54,277/- and for other amount i.e. Rs. 14,39,487/- they may apply for refund if the same was admissible to them. He, therefore submits that the demand of duty has rightly been confirmed. 15. Insofar as the penalty is concerned, ld. JDR submits that the appellants removed the goods under private challans which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of machinery classifiable under Chapter 69, Modvat credit could not be taken before their installation. As against this, the appellants submitted that in the instant case the gobbing stirrer was a part of the metalic stand which was classifiable under Chapter 84/85 and not as part of ceramic structure which was not even goods. We note that the Customs Authorities classified the gobbing stirrer under Chapter sub-heading 8475.90 on which Modvat credit is taken. This is a part of the machinery which was under sub-rule (7) of Rule 57Q is covered by the proposition that Modvat credit could be taken on parts of these machines or machinery before their installation. Thus, we find that the gobbing stirrers were parts of machines classifiable under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
