9911796707
TMI Blog2004 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 and Rs. 3,35,466.97 which represented the credits wrongfully availed by them during the period 1994-1995 to 1996-1997 (Up to January, 1997) whereas the show cause notice to the appellants were issued on 24th December, 1999. The appellants had already reversed the Modvat credit availed of by them prior to issuance of show cause notice and under these circumstances, the interest and the penalty are not imposable. The Tribunal found in favor of the appellants, allowing the appeal and setting aside the impugned order. The Tribunal held that the duty was voluntarily paid before the show cause notice, making penalties inapplicable under Section 11AC and Rule 173Q. The appellants were granted consequential relief. - S/Shri V.K. Jain, Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 1997) respectively. 3.We have heard Shri Debasish Ghosh, ld. Consultant for the appellants and Shri T.K. Kar, ld. SDR for the Revenue. 4.Ld. Consultant, Shri Ghosh submits that the Modvat credit cannot be denied to the appellants in the present case because the losses on LDO FO were due to moisture during transit and were not on account of any deliberate act or omission on the part of the manufacturer or recipient. He relies on the decision in the case of CCE v. Bombay Dyeing Mfg. Co. Ltd. reported in 1998 (97) E.L.T. 101 (T). He submits that after receipt of LDO FO, it was found that certain small percentage of the inputs had been subjected to transit/handling losses, the credit of duty already paid by the recipient of inputs can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relies on the following decisions : (i) Rashtriya Ispat Nigam Ltd. v. CCE, 2003 (161) E.L.T. 285 (T)/upheld by Hon'ble Supreme Court - 2004 (163) E.L.T. A53 (S.C.). (ii) CCE v. Machino Montell (I) Ltd., 2004 (168) E.L.T. 466 (T-LB) = 2004 (62) RLT 709 (CESTAT-LB) (iii) CCE v. Shree Krishna Pipe Industries, 2004 (165) E.L.T. 508 (Kar.) (iv) Kalon Engineering (P) Ltd. v. CCE, 2004 (168) E.L.T. 334 (T). He, therefore, submits that the appeal may kindly be allowed. 6.In reply, Shri Kar, ld. SDR submits that in the present case, LDO FO were received in short quantity even then the Modvat credit has been taken by the appellants. He supports the order passed by the Commissioner of Central Excise, JSR. He submits that the facts have been suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anual basis and there will always be a tolerance error in measurement and the Modvat credit cannot be denied on such difference in weight or measurements under Rule 57A of the Central Excise Rules, 1944. Similar view has been expressed in the case of Commissioner of Central Excise, Rajkot v. Bombay Dyeing Mfg. Co. Ltd. reported in 1998 (97) E.L.T. 101 (Tribunal). In the present case, the minor shortage of the inputs was due to dryage and due to handling is sufficient and logical reasons shown by the appellants. The duty has been taken does not exceed the duty paid on the invoices merely because after receipt it was found that certain small percentage of the inputs had been subjected to transit/handling losses, the credit of duty already pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable in view of the decisions rendered in the following cases : (i) Rashtriya Ispat Nigam Ltd. v. CCE, 2003 (161) E.L.T. 285 (T)/upheld by Hon'ble Supreme Court - 2004 (163) E.L.T. A53 (S.C.) (ii) CCE v. Machino Montell (I) Ltd., 2004 (168) E.L.T. 466 (Tri. - LB) = 2004 (62) RLT 709 (CESTAT-LB) (iii) CCE v. Shree Krishna Pipe Industries, 2004 (165) E.L.T 508 (Kar.) (iv) Kalon Engineering (P) Ltd. v. CCE, 2004 (168) E.L.T. 334 (T). 11.We have examined the cases cited by the ld. Consultant, Shri Ghosh. We find that that the duty was voluntarily paid by the appellants before the issuance of the show cause notice and it was held by the Tribunal that any penalty was not imposable under Section 11AC and/or Rule 173Q. 12.In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
