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TMI Blog2011 (8) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... 42/2002 - A/335/2011-WZB/C-IV(SMB) - Dated:- 25-8-2011 - Shri Sahab Singh, J. REPRESENTED BY : None, for the Appellant. Shri Navneet, SDR, Authorized Representative, for the Respondent. [Order]. This is an appeal filed by the appellant against the order-in-appeal No. PKA/501/M-III NGP/2002, dated 6-9-2002. 2. The brief facts of the case are that the appellants were engaged in the manufacture of excisable goods M.S. Ingot falling under Chapter 72 of the Central Excise Tariff Act, 1985 and were availing MODVAT credit on the inputs used in or in relation to the manufacture of their final products under Rule 57A of Central Excise Rules, 1944. It was alleged by the department that appellant had availed the MODVAT credit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions. I find substance in the plea of the appellants that interest cannot be levied as the entire period covered is prior to the introduction of Rule 57F(5) which provides for levy of interest. Further, there is great force in the plea that composite penalty cannot be imposed in the light of the Tribunal s decision cited supra. Therefore since the position is already settled by way of orders of the Tribunal there is no justification or necessity to remand the case. I therefore set aside the interest and penalty and allow the appeal in respect of these two items whole upholding the duty liability . This order was corrected vide Tribunal s Order No. M/198/WZB/2004-C-I dated 26-3-2004 correcting Rule 57F(5) to Rule 57-I(5). Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularity, if any, committed prior to insertion of said Rule in the Central Excise Rules and hence cannot be the subject matter of penalty under the said provision. 4. The learned SDR appearing for the Revenue reiterated the findings of the Commissioner (Appeals) and stated that the order passed by the Hon ble High Court of Bombay is very categorical. The Court in para-5 of the order has held that Tribunal was not justified in deleting the imposition of penalty and interest merely on the ground that said Rule came into force w.e.f. 23-7-1996. In view of the above, the appeal filed by the appellant may be dismissed and the order-in-appeal restored. 5. After hearing both the sides and going through the case papers and the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills and on investigation, it was found that M/s. Tara Re-rolling Mills had not taken any manufacturing activity in their factory and issued fabricated invoices by manipulating statutory records. Therefore the credit availed by the appellant was not admissible to them and this has been confirmed by the Tribunal in its order. Therefore, following the observation of the High Court as well as taking into consideration, the fact that the invoices based on which the credit was taken were fabricated ones the appellants are liable to penalty as well as interest. I, therefore, dismiss the appeal filed by the appellants and uphold the order-in-appeal restoring the order-in-original. Appeal is dismissed. (Pronounced in Court on 25-8-2011) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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