9911796707
TMI Blog2013 (1) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 E/473/2011 E/474/2011 Stay Appn. No. E/Stay/288/2011 E/Stay/289/2011 E/Stay/290/2011 Amount Involved (Rs.) 1,55,38,577/-demanded u/s 11 A(1) 1,01,81,678/-demanded u/s 11A(1) 1,41,70,486/- demanded u/s proviso to 11A(1) Penalty Imposed (Rs.) 1,55,38,577/- under Section 11 AC 1,01,81,678/-under Rule 25 1,41,70,486/- under Rule 25 Period Involved June, 2007 to November, 2008 December 2008 to September 2009 October 2009 to July 2010 SCN No. 201/2009 dt. 15/12/2009 203/2009 dt. 23/12/2009 158/2010 dt. 01/10/2010 OIO No. 39/4010 dt. 18/11/2010 40/4010 dt. 18/11/2010 41/2010 dt. 18/11/2010 CENVAT Credit available for the corresponding period (Rs.) 1,65,68,456/- 16,22,857/- 44,86,714/- The entire de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with the present appeals to substantiate the claim for CENVAT credit. 3. Proceeding further, the learned counsel adverts to the classification dispute. He submits that similar SILO systems were classified by this Tribunal under heading 84.37 as early as in 1995 in the case of Thermax Ltd. Vs. Collector of Central Excise, Pune [1996(81) ELT 417 (Tri.)] and that decision was never challenged by the Department. Therefore, the cited decision is liable to be followed in the present case for the purpose of grant of waiver and stay. The learned counsel also produces a brochure of the appellant showing the various features of the SILOs and submits that similar features of similar SILOs were considered in the case of Thermax Ltd also. It is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to certain purchase orders and invoices and submits that various sub-systems and components of the SILO system were classified uniformly under heading 8437 and assembled into a SILO system and, therefore, the plea made by the learned counsel that the system cannot be described as pre-fabricated building cannot be sustained. The learned Additional Commissioner (AR) then refers to the terms of sub-heading 8437 10 00 and submits that the SILO system has never been claimed to have been used for operations such as cleaning, sorting and grading. On the other hand, the SILO systems were admittedly used for storage of grains. Loading, unloading, handling etc. are not processes envisaged under the above sub-heading. Therefore, it is argued, clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits against the demand of duty. For the present purpose, we are inclined to accept the plea of limitation raised by the learned counsel though its merits will have to be examined in detail at final hearing stage. The demand of duty claimed to be beyond the normal period amounts to Rs.1,55,38,577/-. The demand for the normal period works out to over Rs.2.43 crores. Though the claim of CENVAT credit is not quantifiable with exactitude at this stage and also not supported by valid 'CENVATable' documents, we are inclined to give an allowance on this count also to the appellant. In this context, we note that the total CENVAT credit claimed to be available to the assessee for the normal period of demand is approximately Rs.61 lakhs. If this cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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