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TMI Blog2007 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... from the office of the Directorate General of Foreign Trade (DGFT), Mumbai for import of capital goods viz, equipment for captive power plant. The appellants acquired these capital goods for captive power plant on payment of countervailing duty (CVD) as per law prevailing at the time of clearance. On receipt of such capital goods in the factory premises, the appellants availed 50% of the CVD paid by them in their statutory records. On an investigation carried out by the department and subsequent recording of the statements, the department came to the conclusion that the appellant had no intention to install the said captive power plant in the factory premises but had sought the permission of DGFT to include the name of M/s. Vidarbha Power L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the premises of said M/s. Vidarbha Power Ltd. Coming to such conclusion, the adjudicating authority confirmed the demand, imposed penalty and also sought to recover appropriate interest, besides disallowing the credit of Rs. 1,11 Crores and confiscated the capital goods which were detained and seized, with an option to redeem the same on payment of redemption fine. This appeal is against such order. 2. Ld. Advocate appearing on behalf of the appellant submits that the entire order of the Commissioner is based on presumptions. It is his submission that the components i.e. capital goods were seized by a panchanama drawn in their own factory premises would itself indicate that appellants had intention to use the same in their facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence to incorporate the name of M/s. Vidarbha Power Ltd. as supporting manufacturer. He reads Rule 57Q as it was during the relevant period and submits that the credit on capital goods can be availed only if the said capital goods are used in the factory premises of the manufacturer of final products. 4. Ld. Advocate submits in rejoinder, that the contention of the revenue they had no intention to use the said imported components for installation of captive power plant is totally baseless. He submits that they had procured other indigenous duty paid materials which are required for installation of captive power plant, along with these imported goods. He submits the invoices of such indigenous purchases. 5. As directed by the Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the factory premises of the Noticee meant for installation in the premises of M/s. Vidarbha Power Ltd., Telegaon. 29. From the records available with this office, I find that in fact M/s. Lloyds had vide their letter dated 17th June, 2000 to the Jt. Director General of Foreign Trade, Mumbai requested for inclusion of M/s. Vidarbha Power Ltd. as co-licensee in their EPCG licenses for importing capital goods. Further the Noticee stated that they have proposed to hive off the power project to a separate company viz. Vidarbha Power Ltd. and that M/s. Vidarbha Power Ltd., will a supporting manufacturer for supply of power to M/s. Lloyds. Accordingly the office of the Jt. Director General of Foreign Trade vide Amend sheet No.1 dated 24-7-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also that credit which they are supposed to avail in the subsequent year. 7. We find from the records that while clearing the goods which are components and parts of the turbine, the appellant had given a declaration to the Customs authorities that they intend to avail the Modvat/Cenvat credit in their plant at Wardha. After clearing the said goods, the appellant brought these capital goods to their factory premises at Wardha. It is also undisputed that the said components parts are seized in the factory premises of the appellants by a panchanama dated 5-7-2003 and 1-10-2003. On this factual matrix, the findings of the ld, adjudicating authority that the appellants had no intention to install the captive power plant seems to be based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts had no intention to install the captive power plant in their own factory premises. It is also seen from records that appellant had procured indigenous components, parts etc. for installation of captive power plant. It is a common knowledge that no one will make such a massive investment in machinery, if he has no intention to use the same. As regards the contention of the revenue that appellant had included name of M/s. Vidarbha Power Ltd. as supporting manufacture, would in itself may not be a conclusive evidence to arrive at a finding that appellant had no intention to use the imported goods in their factory. To our mind the lower authorities have acted in a Waste for confirmation of demand, without any concrete evidence against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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