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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 ..... er 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 Ltd. for the production of electricity from such captive power plant.. Based on this, a show cause notice dated 29-3-04 was issued to the appellant directing them to show cause as to why the credit of Rs.1 .11 Crores availed by them be not denied and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated 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 factory premises. It is his submission that the goods, which were imported by them, were in fact were turbines and components for turbines, which were to be subsequently used for the construction of captive power plant. It is his submission that provisions of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises 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 Bench, the Advocate for appellant has produced the copies of indigenous purchases made by them in respect of the very same captive power plant. 6. Considered the submissions made at length by both sides and perused the records. The adjudicating authority in order to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 24-7-2000 to the respective EPCG licenses which reads as under :- (a) Machinery will be installed at the premises of Vidarbha Pawer Ltd., Talegaon, Maharashtra. (b) M/s. Vidarbha Power Ltd. Talegaon., as co-licencee will be sup porting manufacturer and will supply required po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat/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 on presumptions and surmises. The appellants have explained to the adjudicating authority that the installation of the captive power plant faced hurdles from the Maharashtra Pollution Control Board which required the appellant to get a clearance certificate from the Ministry of Env ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment 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 appellant. To our mind, the said impugned order having been passed on the premises and surmises, is unsustainable. 8. We also find strong force in the contention of the counsel for the appellant that provisions of Rule 57Q of Central Excise Rules, 1944 would apply in this case. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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