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TMI Blog2002 (9) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendent demanded duty of Rs. 7.77 lakhs approx. on the capital goods that it removed from the factory on the ground that in terms of the sub-rule (1) of Rule 57S, the credit that was taken should have been reversed. Penalty under Rule 173Q was also proposed. By a subsequent corrigendum issued on 10-12-96 by the Commissioner, imposition of penalty under Section 11AC and recovery of interest under Section 11AB was also proposed. In its reply, the appellant contended that the credit taken of the duty paid on capital goods had already been utilised in the finished excisable goods. It had not cleared the capital goods for home consumption, but shifted them to another of its plant and hence the provisions of sub-rule (1) of Rule 57S were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment made to the Section, only the Collector will issue and decide demand in case of allegation of fraud, suppression and mis-statement were involved, both were in the normal period and extended period of limitation contained in Section 11A of the Act. This circular will have no application in cases of recovery of Modvat credit wrongly availed. The notice issued by the Superintendent in this regard did not invoke the provisions of Section 11A. The fact that a corrigendum, invoking the provisions of Section 11AB and 11AC was issued by the Commissioner does not have the effect of changing the demand for duty, if altering the character of the notice which demanded the credit. No doubt as the counsel for the appellant argues penalty under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a situation in which the capital goods are removed after being used in or in relation to manufacture of final products. 5. Another argument that was advanced was that the removal of the capital goods was part of the shifting of the appellant s factory. The correspondence submitted by the appellant does indicate this to be the case. This letter of 7-11-95 had told the Superintendent that it was going to start production in the new premises within the next two or three months and for that purpose was shifting of machine step by step. Further the letter dated 9-11-95 listed the 11 items of machinery that was proposed to be shifted. Further letters listed other items which were to be shifted. We however do not see how this has any impact on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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