9911796707
TMI Blog2008 (9) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... None, for the Respondent. [Order per: K.A. Puj, J. Oral]. - The Commissioner of Central Excise Customs, Vadodara-II has filed this tax appeal under Section 35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law arising out of the order of the Central Excise Service Tax Appellate Tribunal (CESTAT) for determination and consideration of this Court:- (a) Whether in the facts and circumstances of the case, the Tribunal erred in law in placing reliance upon the judgment of the Tribunal in the case of M/s. Kailash Auto Builders, reported in 2001 (47) RLT 950 CEGAT Bangalore as well as the decision of the Tribunal in the case of M/s. Arvind Mills Ltd., reported in 2005 (182) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of the same from the respondent assessee. The adjudicating authority also imposed penalty equivalent to the said duty of Rs. 2,04,000/- under Section 11AC of the Act and penalty of Rs. 10,000/- was imposed on the respondent under Rule 173Q of the Central Excise Rules, 1944. Recovery of interest as applicable from time to time was also ordered under Section 11AB of the said Act. 3. Being aggrieved by the said Order in Original dated 6-12-2001, the respondent preferred an appeal before the Appellate Authority and the Appellate Authority having applied the ratio of the judgment of the Tribunal in the case of Kailash Auto Builders Limited v. Commissioner, Bangalore, reported in 2002 (140) E.L.T. 148 (Tri.-Bang.) allowed the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and, therefore, substantial question of law as formulated by the appellant is required to be decided by this Court. He has further submitted that the Tribunal has not appreciated and considered the provisions of Rule 57AD(3) of the said Rules as also Rule 6(4) of the Cenvat Credit Rules, 2001 which say that no credit of specified duty is allowed on capital goods which are used exclusively in the manufacturing of exempted goods. He has further submitted that the Tribunal has not considered the decision in the case of M/s. Surya Roshni Limited, reported in 2003 (155) E.L.T. 481 (Tri.-Del), which has been confirmed by the Hon'ble Supreme Court in its judgment rendered in the case reported in 2003 (158) E.L.T. A273 (S.C.), inter alia, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce as per appellant's claim they were not of the requisite quality. However, gradually they were able to refine the manufacturing process to obtain granules of requisite quality and most of which quantity is used in the production of film. Their intention was not to produce granules to be cleared on exemption but to produce granules used in the manufacture of film but only in the trial period they could not produce granules of requisite quantity and had to clear them under exemption and that the usage of the machine is to be seen with regard to its working life and not utilization in a limited specific period. The respondent assessee has, therefore, debited the credit taken and subsequently, again took credit of duty paid on the machine. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is distinguishable on facts and if appeal is filed against the said decision is dismissed by the Hon'ble Supreme Court, depending upon the facts of the ease, it does not preclude us from taking the view that no substantial questions of law arises out of the order of the Tribunal. In that case, the Tribunal held that the eligibility of the capital goods to be determined at the time when goods are received by the manufacturer. Subsequent becoming of the goods as dutiable or the manufacturer puts the capital goods to other use would not revive the question of admissibility of Modvat credit. Here in the present case, there is no question of putting the capital goods to other use. It is clear from the order passed by the authorities below that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
