9911796707
TMI Blog2006 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee of duty paid on capital goods received, found to be taken wrongly and it is to be recovered with consequent penalties under Section 11AC read with Rule 57U(6), confiscation of land building, plant and machinery under Rule 173Q(2)(a) and redemption thereof on a fine of Rs. 4 crores along with interest and individual consolidated penalties under Rules 209A, 210 226 have been arrived on employees, of the assessee and under Rules 209A 210 on the Central Excise Officers appellants herein. 1.2Certain capital goods duty paid, were recovered in the factory premises on eligible documents and installed in the factory as they were to be used in the manufacture of dutiable final products is not in dispute. 1.3The Excise auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-8-04 and Chartered Engineer Certificate dt. 24-11-04 was submitted by the assessee. Credit of Rs. 12.85 crores was denied along with penalty of equivalent amount and fine of Rs. 4 crores by an order dt. 22-11-05. 2.1The plea of having taken the credit of Rs. 12.85 crores and its non-utilization is not met by the Commissioners and the Chartered Accountants certificate dt. 12-1-2006 to the effect of installation and use and not having utilized the credit which is lying in balance is placed before this Tribunal. This would lead to a conclusion that Commissioners' finding of having "availed the credit of Rs. 12.85 crores" therefore cannot be upheld. 2.2Even if it is accepted that predated/fabricated declaration under Rule 57T(1) and T(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be upheld. 2.3The reliance of the ld. Advocate on the decision of Calcutta High Court in case of H.C.L. Ltd. v. U.O.I. - 1992 (59) E.L.T. 507 (Cal.) paras 18 19 of the report is well founded to arrive at a finding that moral conduct and consideration of immorality cannot be relevant to arrive at tax liability and or eligibility to tax concessions, if such concessions are not linked to any such provisions. The provisions of the Central Excise Act, 1944 and the rules under are to levy on tax on manufacture/and collect the same. In garnering of such levies, issues of morality cannot arise. The conduct to evade or avoid may be however liable to a penal consequence, the levy or exemption cannot avoided or denied. The Central Board of Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods as defined under the Central Excise Act, 1944 which would attract a liability, if any, under Rule 209A. Therefore Rule 209A is not applicable in this case. 2.7It is well settled that composite penalty as ordered cannot be upheld. It is set aside. In the de novo proceedings the Commissioner will arrive at penalties, if any, liable as per law following this order in remand. 2.8Following the Tribunal decision in case of 2005 (190) E.L.T. 265 would call for setting aside the order of confiscation arrived under Rule 173Q(2) in this case credit eligibility determination. 2.9The appeals are therefore to be allowed upholding of the eligibility to credit and remit them for redetermination of penalty and other liability under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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