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2016 (5) TMI 897 - CESTAT KOLKATAImposition of penalty - Cenvat credit wrongly taken - M.S. Angle, M.S. Channel, G.C. Sheet and Welding Electrodes are used for making support structures for the capital goods - Held that:- there were conflicting judgments regarding admissibility of Cenvat Credit on such items before Larger Bench delivered judgments in the case of Vandana Global Ltd. Vs. CCEx., Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. When conflicting judgments with respect to an issue were available then it cannot be said that appellant had malafide intention to fraudulently take inadmissible credit. Accordingly, penalty imposed by the adjudicating authority, and upheld by the first appellate authority, is set aside. Classification - Copper Bonded Grounding Rods - Held that:- product manufactured by the appellant has undergone specific processes to make the same usable solely and principally for lightning arrester system. Reliance placed by the appellant on the drawback schedule published by the Department and export made by other appellants is not of any help because it is not coming out of the list of other exporters whether any specific processes were also undertaken by those exporters on the “Copper Bonded Grounding Rods” exported. Accordingly, it is held that classification of the goods manufactured by the appellant will be CETH 8538.00 as parts of lightning arrester. Period of limitation - Demand and imposition of penalty - appellant has exported the entire quantity of “Copper Bonded Grounding Rods” manufactured and would have been entitled to 100% rebate of duty paid on the finished goods - Held that:- there was no reason for the appellant to deliberately mis-declare the classification under CETH 7215.00. Thus, it cannot be said that appellant had any intention to evade payment of Central Excise duty. Demand is, therefore, required to be restricted within the period of one year from the date of issue of show cause notice and penalty imposed upon the appellant under Section 11AC is required to be set aside. - Decided partly in favour of appellant
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