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TMI Blog2009 (10) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, interest and penalty. 2. The assessee had supplied bottom rail for Material-Handling Machinery to Bharat Heavy Electricals Limited (BHEL), Kanpur after procuring the material under commercial invoice from an unregistered dealer. When the goods were cleared to BHEL, duty of Rs. 3,41,261/- (including Education Cess) was paid. BHEL rejected the material which was taken back by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,538/- and Rs. 1,411/- towards such demand. It also imposed a penalty of Rs. 2,69,311/- on the assessee under Section 11AC. Interest on duty was demanded under Section 11AB. An appeal filed by the assessee against the Assistant Commissioner s order was rejected by the Commissioner (Appeals). Hence the present appeal. 3. The learned counsel for the appellant has filed argument notes, wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 522 (Tri. - Ahmd.) 5. After giving careful consideration to the submissions, I find that the assessee has claimed equitable relief s rather than statutory, at this stage. It is not in dispute that they supplied bottom rails, on payment of duty, to BHEL. Subsequently, when the material was found defective and rejected by BHEL, the appellant took Cenvat credit of the duty paid thereon. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer, and having apparently utilised such credit for payment of duty on excisable products, the assessees is estopped from arguing that they were not liable to pay duty on the material on the ground that the supply to BHEL was only a trading activity. Consequently, the applicability of Rule 16(2) of the Central Excise Act to the material removed as such from the appellant s factory to the scrap dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erential duty with interest (in terms of Section 11AB of the Act). Insofar as the penalty is concerned the appellant has denied having suppressed any fact with intent to evade payment of duty. I have already found that they suppressed a crucial fact. Hence, the penalty to the extent of differential duty has to be sustained. It is ordered accordingly. 8. The appeal is disposed of in the above ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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