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TMI Blog2013 (1) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... lant to pre-deposit an amount of Rs.1.5 crores. - ST/472-474/2011 - Stay Order Nos. 1180-1182/2012 - Dated:- 5-7-2012 - P.G. Chacko, J. Appellant Rep by: Mr Rajesh Chander Kumar, Adv. Respondent Rep by: Mr Ganesh Haavanur, Addl. Commissioner (AR). Per: P.G. Chacko: These applications filed by the appellant seek waiver of pre-deposit and stay of recovery in respect of the adjudged dues which include duty of over Rs.3.98 Crores. The impugned order was passed in adjudication of three show-cause notices and the particulars of the demands are as shown below:- Appeal Nos. E/472/2011 E/473/2011 E/474/2011 Stay Appn. No. E/Stay/288/2011 E/Stay/289/2011 E/Stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices amounts to Rs.2,43,52,164/-. There are also penalties on the appellant, the penalty as proposed in the first show-cause notice and determined by the adjudicating authority being under Section 11 AC of the Central Excise Act and the penalties proposed in the other two show-cause notices and ermined by the adjudicating being under Rule 25 of the Central Excise Rules, 2002. 2. The learned counsel for the appellant has, at the outset submitted that the appellant will be entitled to utilize CENVAT credit of over Rs 2.26 crores in the event of the demand of duty being sustained. Fairly enough, however, he submits that this claim was not raised before the adjudicating authority. He hastens to add that certificates from Chartered Account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from components (sheets, bolts etc.) at site in a bit-by-bit manner and hence the resulting system cannot be classified as pre-fabricated building. In this manner, the learned counsel argues in favour of classification of the SILOs under heading 8437 and against the classification under heading 9406. The learned counsel has also pleaded limitation against a considerable part of the demand of duty. He submits that the appellant was classifying the SILOs in a bona fide manner under heading 8437 following the Tribunal's old decision rendered in the case of Thermax Ltd., which was not challenged by the Department. Therefore the allegation of suppression of facts is not tenable. 4. The learned Additional Commissioner (AR), apart from reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermax's case, which rendered on the facts of that case, could not have been followed by the assessee in a different set of facts obtaining from the present case. The plea of bona fide plea regarding classifiability of the item is, therefore, not sustainable. Referring to the claim of CENVAT credit, the learned Additional Commissioner (AR) submits that this may not be entertained at this stage as it was never raised before the adjudicating authority. The present claim is also not fully supported by documentary evidence. 5. After giving careful consideration to the submissions, we have not found prima facie case for the appellant on the classification issue. The submissions made by the learned Additional Commissioner (AR) appear to be acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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