9911796707
TMI Blog2017 (4) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 2. The brief facts are that the appellant-assessee is a manufacturer of equipment for Railways namely fan shaped switches, fitting and fasteners, Check rails and Switch expansion joints, among others, falling under Sub-Heading No.7302.90 of the Central Excise Tariff Act, 1985. Revenue on information that appellant is not paying proper duty and/or evading duty by including the value of Rails supplied by Indian Railways, in the assessable value of the aforesaid goods manufactured and cleared to Railways, an inspection was conducted on information gathered. Thereafter, show-cause-notice dated 20.09.1999 was issued, demanding a total duty of Rs. 1,56,20,946/-. The SCN was adjudicated vide Order-in-Original, on contest, dated 31.10.2000 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that this alternative argument and/or ground is being taken for the first time and it was not a legal ground before the Tribunal, and accordingly, the prayer was rejected. He was further pleased to impose penalty of Rs. 2 lakhs under Rule 173Q of CER, 1944 holding. that the assessee have not paid the correct duty on the goods cleared by them and accordingly levy of penalty is just and proper. 4. Being aggrieved, the appellant assessee is in appeal before this Tribunal. The learned counsel for the appellant, Mr. Vineet Kumar Singh urges that allowing of Modvat Credit is a part of the scheme of the Central Excise Act and the Rules. It is a part of calculation and/or method of calculation of duty payable by an assessee. Earlier the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in their Misc. Application No.E/MISC/70506/2016 is calculated at Rs. 16,95,287/-, the issue is remanded to the learned Commissioner to allow the Modvat claim after verification of the claim amount in accordance with law. So far, the issue of penalty is concerned, I find that there is no contumacious conduct and/or suppression of facts on the part of the appellant. Therefore, I hold that no penalty is imposable under the provisions of Rule 173Q of CER, 1944 and accordingly, the penalty imposed is set aside. Thus, the appeal is allowed and remanded for limited purpose of calculation of Modvat allowable and working of the net demand payable/refundable to the appellant-assessee. The appellant is also entitled to credit of any pre-deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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