9911796707
TMI Blog2004 (8) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 1996 to January, 1997. 2. The respondents are engaged in the manufacture of Pet Chips. They availed Modvat credit of the above referred amount in April, 1997 on the capital goods received during April to Jan., 1997 under Rule 57Q. They were served with a show cause notice for having taken the credit wrongly on the goods as detailed in the Annexure at Sl. Nos. 1 to 44 appended to the show cause notice. In reply to that show cause notice, they conceded of having availed the Modvat credit wrongly in respect of items/goods listed at Sl. Nos. 4, 6, 7, 17, 18, 28, 29, 32, 36, 39, 40, 42(a), 42(b) and 43 as these goods did not fall within the definition of the capital goods. They accordingly reversed the Modvat credit in respect of thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1998. Before the Commissioner (Appeals) when they challenged the order-in-original of the adjudicating authority, they never claimed the Modvat credit of this amount, rather in the statement of facts, attached to the memo of appeal they again reiterated that credit of this amount was not available to them and that it had been already reversed by them. They only contested that part of the order-in-original of the adjudicating authority vide which the authority disallowed the credit to them on the other items, of the balance amount, out of the total amount of Rs. 117,47371/-. 6. From the file, we find that during the pendency of the appeal, the respondents submitted one letter dated 8-4-2001 alleging that some important grounds and related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), 42(b) and 43 in the Annexure, did not satisfy the definition of capital goods. They reversed the Modvat credit of Rs. 34,83,846/- in respect of these items vide Entry dated 21-2-1998. Even before the Commissioner (Appeals), as observed above, initially in the statement of facts appended to memo of appeal, they again conceded that credit of this amount was not available to them and they had already reversed it. They only challenged the disallowance of the credit of the balance amount to them by the adjudicating authority. Therefore, under the above referred facts and circumstances, the Modvat credit of this amount could not be legally allowed to them and the Commissioner (Appeals) appears to have overlooked all the above referred facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their goods. They themselves accordingly reversed the credit on those goods of the amount, detailed above. At no stage, before the adjudicating authority, they put up the plea that this concession was wrongly made by them and that their goods did satisfy the definition of capital goods . They never sought permission for the reversal of the debit entry nor they even claimed the refund of that amount. Even before the Commissioner (Appeals) in the appeal, they again reiterated the above said concession and maintained their stand that the items detailed above on which they took the credit of the above said disputed amount, did not fall within the ambit of capital goods . It is only at the late stage, during the pendency of the appeal, all of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual conduct of the assessee will not validate in law the demand which otherwise is invalid. Bui such is not the position in the present case, in the light of facts and circumstances, detailed above. Similarly, the law laid down in National Thermal Power Co. Ltd. v. Commissioner of Income Tax [1998 (99) E.L.T. 200 (S.C.)], referred by the Counsel, wherein it has been observed that the Tribunal has jurisdiction to examine new question of law which arises from the facts as found by the authorities below, having bearing on tax liability of the assessee even though not raised before the lower authorities, is not attracted to the facts of the present case, keeping in view the facts and circumstances detailed above. 10. For the balance amount, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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