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TMI Blog2015 (4) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ively in the manufacture of the exempted product. Thus, it is a clear case of mis-declaration of facts. The assessee deliberately declared that the imported capital goods would not be used exclusively in the manufacture of exempted product and then they are eligible to avail CENVAT Credit. Thus, it is a clear case of mis-declaration to evade payment of duty. Hence, the extended period of limitation would be applicable. - Decided against assessee. - Appeal No. E/1070/2010, Appeal No.E/1182/2010 - Order No. A/10282-10283/2015 - Dated:- 27-3-2015 - Hon ble Mr. P.K. Das, Member (Judicial),J. For the Petitioner : Shri J.C. Patel, Advocate For the Respondent : Dr. J. Nagori, Addl.Commr.(Authorised Representative) ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 alongwith interest and imposed penalty of ₹ 38.57 lakhs under Rule 57 U(6) of Central Excise Rules 1944 (present Rule 25 of Central Credit Rules 2002). A penalty of ₹ 5 lakhs was also imposed on Shri Nalin Desai, Chief Manager of the assessee company. By the impugned order, the Commissioner (Appeals) dismissed the appeal filed by the assessee and allowed the appeal filed by Shri Nalin Desai. Hence, both the assessee and the Revenue filed these appeals before the Tribunal. 4. Learned Advocate appearing on behalf of the assessee and its Chief Manager submits that the Commissioner (Appeals) passed the order, following the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd Vs CCE Thane 2007 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee company. He has no role in the alleged irregularity. It is submitted that during the relevant period, there was confusion of the eligibility of the MODVAT Credit and therefore, the Commissioner (Appeals) has rightly set aside the penalty. It is also submitted that the goods were also not available for confiscation and therefore, penalty under Rule 209A of erstwhile Rules, 1944 cannot be invoked. 7. On the other hand, the learned Authorised Representative for the Revenue submits that this issue is squarely covered by the decision of the Larger Bench Tribunal in the case of Spenta International Ltd (supra). Subsequently the Tribunal, on the identical issue following the decision of the Larger Bench, in the case of CCE Surat Vs Aner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on perusal of the records, I find that the assessee received the capital goods in the factory premises on 12.05.1997 and 12.05.1998. They had utilized the imported capital goods for manufacturing of the final product which was exempted from duty under Notification No.4/1997, dt.01.03.1997. The said notification was rescinded and replaced by Notification No.5/1998-CE, dt.03.06.1998. The appellants started payment of duty. On 17.03.1999, the assessee availed the CENVAT Credit in RG-23 C Part II on the capital goods which were received in May 1997 and May 1998 and also used in the manufacture of the exempted goods. 10. The issue before the Larger Bench of the Tribunal in the case of Spenta International Ltd (supra) was whether the CENVAT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Service which came in the Service Tax net from 16.06.2005. The Tribunal held that the Air Compressors were received for providing output service, which was not under the Service Tax net at the relevant time. Similar view was taken by the Tribunal in the case of M/s Global Oil Industries Ltd (supra). In the present case, it is seen from the records that the assessee received and utilized the capital goods in the manufacture of exempted goods and therefore, the decision of the Larger Bench would be squarely applicable. 12. Learned Advocate contended that the Notification No.4/1997-CE is conditional one as the benefit of Nil rate of duty would be applicable, if no credit of the duty paid on the inputs used in the manufacture of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see under the then Rule 57T of the erstwhile Central Excise Rules 1944. But, the fact remains that the appellant used the machinery exclusively in the manufacture of the exempted product. Thus, it is a clear case of mis-declaration of facts. The assessee deliberately declared that the imported capital goods would not be used exclusively in the manufacture of exempted product and then they are eligible to avail CENVAT Credit. Thus, it is a clear case of mis-declaration to evade payment of duty. Hence, the extended period of limitation would be applicable. 14. Regarding the appeal filed by the Revenue, I find that Shri Nalin Desai is an employee of the assessee company. It has already imposed penalty of equal amount of duty on the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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