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TMI Blog2010 (2) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... 99/2009 - Stay Order No. 116/2010-EX(PB) - Dated:- 15-2-2010 - R.M.S. Khandeparkar and Shri Rakesh Kumar, JJ. Shri V. Laxmikumaran, Advocate, for the Appellant. Shri P.K. Singh, DR, for the Respondent. ORDER This is an application for waiver of the requirement of pre-deposit of Cenvat credit demand of Rs. 80,20,528/- alongwith interest and penalty of equal amount imposed by Commissioner of Central Excise Customs, Noida vide order-in-original No. 48/Commr./Noida/08 dated 8-12-08 and also stay on its recovery till the disposal of the Appeal. 1.1 The Appellant is a company engaged in the business of development, customization implementation of computer software, business consulting, imparting user training to implemented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal alongwith stay application have been filed. 2. Heard both the sides. 2.1 Shri V. Laxmikumaran, Advocate, the learned Counsel for the Appellant, pleaded that though the supplier of the FACT - 10 equipment has mentioned its tariff classification as 73089080, since this equipment is used for testing radio frequency emissions from electronic products, the same is correctly classifiable under sub-heading 90303390 and hence is covered by the definition of capital goods, that mention of incorrect tariff heading in the supplier s invoice will not disentitle the Appellant from availing Cenvat credit based on correct clarification, that in this regard, reliance is placed on Tribunal s judgments in cases of - (a) Auto Field Engineers Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s invoice as 73089080; that there is no evidence that the classification of this item has been revised by the jurisdictional central excise authorities; that since the duty payment document i.e. the supplier s invoice mentions the classification of FACT-10 equipment under Chapter 73, it is not covered by the definition of capital goods; that this item is not covered by the definition of inputs; that in view of this, Cenvat credit has been correctly denied; that the relevant facts about this huge amount of wrongly taken Cenvat credit had not been disclosed to the Department and therefore, extended period has been correctly invoked and penalty has been rightly imposed; that just because the central excise records of the unit have been aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of capital goods . 4. There is no dispute about the fact that in respect of the capital goods received under invoice No. 01 dated 29-6-06, the invoice mentions the classification of the goods under sub-heading 73089080. From the invoice, it is also seen that the supplier -M/s. HCL Peripherals had taken Cenvat credit on these goods on the basis of some duty paying document and on clearance of those capital goods as such to the appellant, have reversed the credit initially taken. Obviously, the duty on these goods had been paid by classifying them under sub-heading 73089080 and it is only at stage of receipt of the goods by the Appellant that the classification is sought to be challenged. It is settled law that while considering Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Maxon India Ltd. v. CCE (supra), cited by the Appellant are in respect of cases where while filing the declaration under Rule 57G of Central Excise Rules, 1944, correct tariff heading had not been mentioned in the Modvat declaration and the Tribunal in these cases has held that just because tariff heading of the goods declared in Modvat declaration, was wrong, Modvat credit cannot be denied. These judgments are not applicable to the facts of this case, when the issue involved is as to whether the tariff classification of the goods, decided by the jurisdictional central excise authority/customs authority at the manufacturer s/importer s end can be changed while considering Cenvat credit to the receiver of the goods by the jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers had knowledge about this Cenvat credit, as the audits by the internal audit parties of the Department or by the audit parties of C AG are only test checks in which hundred percent records are not checked. In view of these circumstances, we are of prima facie view that longer limitation period has been correctly invoked. 6. We are, therefore, of the view that so far as the denial of Cenvat credit amounting to Rs. 79,11,624/- on the basis of invoice No. 01 dated 29-6-06 of M/s. HCL Peripherals is concerned, the Appellant have not been able to establish prima-facie case in their favour. Therefore, this is not a case for granting full waiver. The Appellant are, therefore, directed to deposit an amount of Rs. 79,11,624/- within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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