9911796707
TMI Blog2004 (12) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... rder]. The facts in the present appeal are as follows :- 2. The appellant is a manufacturer of calcium silicate insulation blocks, an energy saving item, developed indigenously with local know-how and the appellant firm was established to carry out the manufacture of the item. The appellant took credit of the capital goods in terms of the provisions of Rule 57Q of the Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the capital goods credit proposed in the show cause notice and imposed a penalty of Rs. 1,00,000/- on the appellant under Rule 173Q of the Central Excise Rules. The appellant preferred an appeal against the order of the Assistant Commissioner before the Commissioner (Appeals), Rajkot, reiterating their submission and requesting order on merit. The Commissioner (Appeals) upheld the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they cannot be considered as capital goods. In the case of Indian Copper Corporation Ltd. [1965 (16) STC 259], the Supreme Court held that building materials used as raw material for construction of plant cannot be said to have been used as plant in the manufacture of goods . In the present case, the appellant has not furnished any evidence to the lower authorities as to where and for what purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that the appellant made these averments backed by the chartered engineer s certificate for the first time before the Tribunal. The chartered engineer s certificate itself was not available before the lower authorities. He submitted that such an evidence cannot be entertained and the matter decided at this level. 6. I have considered this submission of the learned DR carefully. I am in agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned goods were used in the fabrication of the machinery that in turn was used in the manufacture of final dutiable product. 7. In regard to penalty, I hold that sufficient case for imposing a penalty of Rs. 1.00 lakh is not made out. The issue remains one of lack of proper evidence. I, therefore, hold that a penalty of Rs. 25,000/- for wrong availment of Modvat credit meets the ends of jus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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