9911796707
TMI Blog2002 (11) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. Mishra, SDR, for the Respondent. [Order per : C.N.B. Nair, Member (T)]. - The appellants are a manufacturer of Cement. They are entitled to take duty paid on capital goods installed in their factory by way of Modvat credit. When such capital goods outlive their utility they are scrapped and removed. The iron and steel (waste and scrap) so obtained in the scraping of machinery, are sent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Section 11A applied only to cases of wilful mis-declaration and suppression of facts etc. with intent to evade duty. They contend that allegation of intent to evade duty could not be raised in the present case inasmuch as the transactions were revenue neutral. They point out that in the event of payment of duty on the scrap removed from the cement factory, the same was available to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice since any duty paid on the removed scrap could, with no loss of time, be taken as credit in the Foundry Division. 3. As against the aforesaid submissions of the appellant, the learned SDR has pointed out that the removal of capital goods was not disclosed to Central Excise authorities and therefore, the Commissioner was right in holding that the requirement regarding intention to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a finding of clandestine removal of goods with intent to evade duty is not sustainable against the appellant. The extended period contemplated in the proviso is not attracted. The demand is hit by limitation. Once duty demand is not sustainable, the question of penalty does not arise. 5. In view of the foregoing, the impugned order is set aside and the appeal is allowed with consequential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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