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TMI Blog2018 (12) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... utput product from their factory. Going by the definition of the capital goods as extracted above, it can be seen that there is no bar on the use of the product as a capital goods, merely that the appellant has reversed the cenvat credit and interest thereon will not deprive from the substantive right for availing cenvat credit within Cenvat Credit Rules, 2004. Appeal allowed - decided in favor of appellant. - Ex. Appeal No.38/09 - FO/76637/2018 - Dated:- 19-9-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER And SHRI BIJAY KUMAR, TECHNICAL MEMBER Shri S. Mahapatra, G.M. for the Appellant (s) Shri H. S. Abedin, Asstt.Commr. (A.R.) for the Revenue (s) ORDER Per Shri Bijay Kumar: The present appeal is filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of impugned show cause notice and subsequent to that they have also paid the applicable interest to the tune of ₹ 10,53,370/- and ₹ 21,67,000/- on 6.6.2007 i.e. after issue of show cause notice. Not satisfied with the reversal, the Revenue issued impugned show cause notice demanding reversal of wrongly availed Cenvat credit along with imposition of penalty under Rule 15(2) of Cenvat Credit Rules read with Section 11AC of Central Excise Act. The case was adjudicating upon by the impugned order and accordingly a penalty of ₹ 90,16,258/- was imposed on them under Rule 52 of the Cenvat Credit Rules, 2004 read along with Section 11AC of Central Excise Act. 3. Against this background, we heard ld. Advocate on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue involved in this case is regarding availment of credit on box HS wagon classifiable under Chapter Heading 86069290 treating them as capital goods. The capital goods has been defined under Rule 2(a)(A) of Cenvat Credit Rules, 2004, where certain goods have been specified by classification as well as by the description and such goods are required to be used in the factory of production of the final product. For better appreciation of the issue involved, it is worthwhile to extract Rule 2(a)(A) of Cenvat Credit Rules, 2004, which is as under : Rule 2(a)(A) of CENVAT Credit Rules, 2004 defines the Capital Goods as the following goods, namely- (i) ll goods falling under Chapter 82, Chapter, 84, Chapter 85, Chapter 90, headi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on after issuance of show-cause notice. Not being satisfied with the reversal, the Department has been demanded the penalty under the provisions of Section 11AC of the Central Excise Act, 1944 read with Rule 15 (1) of Cenvat Credit Rules, 2004. We also find that the box HS wagon are being used for procurement of inputs as well as dispatch of output product from their factory. Going by the definition of the capital goods as extracted above, it can be seen that there is no bar on the use of the product as a capital goods, merely that the appellant has reversed the cenvat credit and interest thereon will not deprive from the substantive right for availing cenvat credit within Cenvat Credit Rules, 2004. This view has been upheld by catena of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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