TMI Blog2010 (8) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 - - - Dated:- 20-8-2010 - F.M. Ibrahim Kalifulla and M.M. Sundresh, JJ. REPRESENTED BY : Shri K. Ravi Anantha Padmanabhan, Sr. Counsel for Customs C. Ex., for the Appellant. Shri C. Saravanan, for the Respondent. [Judgment per : F.M. Ibrahim Kalifulla, J.]. - Substantial question of law that arises for consideration in this appeal is "whether the second respondent was correct in law in allowing the MODVAT benefits when the sub-heading 8429.00 is one of the specifically excluded items for the grant of the said benefit under Rule 57-Q and the table annexed to it". 2. We heard Mr. K. Ravi Anantha Padmanabhan, learned Senior Counsel for the appellant and Mr. C. Saravanan, learned counsel for the first respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Final Order No. 80/2004 [2005 (179) E.L.T. 220 (Tribunal)], having confirmed the order of the lower authority, confirmed the order of the original authority. 4. Mr. K. Ravi Anantha Padmanabhan, learned Senior Standing Counsel for the appellant in his submissions after referring to Rule 57-Q and the table annexed to it and also bringing to our notice the fact that the manufacturer of the product except having mentioned the product item as falling under 84.29 having regard to the decision of the Hon'ble the Supreme Court in the decision in Sarvesh Refractories (P) Ltd. v. Commissioner of C. Ex Customs - 2007 (218) E.L.T. 488 (S.C.), the Tribunal was not justified in law in having reclassified the product under the heading 84.28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2007 (218) E.L.T. 488 (S.C.)], if the shovel loader by virtue of its classification as falling under 84.29 has been excluded since such a classification has been specified by the manufacturer of product itself. The first respondent's contention based on clause 5 of the table annexed to Rule 57-Q should be allowed to be exempted by the lower authorities. Learned counsel made the above alternate submission while contending that the Tribunal was justified in classifying the capital goods as one falling under the heading 84.28. 6. Having considered the submissions of respective counsel, we find that the Commissioner of Appeals as well as the Tribunal have committed serious error in classifying the capital goods as one falling under 84 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under 84.29 had been specifically excluded for the purpose of availing MODVAT credit and the 'shovel loader' was the product with reference to which the first respondent availed MODVAT credit, there was no scope for allowing such MODVAT Credit availed by the first respondent. The alternate contention of the first respondent by relying upon clause 5 of the table annexed to Rule 57-Q, is concerned, at the very outset, it will have to be stated that specific product in a specific description falling under specific heading having been specifically excluded for claiming MODVAT credit under Rule 57-Q read along with the table annexed to it, it will not be permissible for any authority much less, for this Court to countenance such a claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the specifically excluded item under Column 2 of the Serial No. 2 of table annexed to Rule 57-Q. Consequently, there is no scope to even consider the alternate submission made on behalf of the first respondent.8. Having regard to our above conclusion, we find that the impugned order of the Tribunal is not in consonance with law and therefore, we answer the substantial question of law against the assessee and in favour of the Revenue. The impugned order of the Tribunal as well as that of the Commissioner Appeals stand set aside and the order of the original authority is restored. The Civil Miscellaneous Appeal stands allowed. However, we are of the view that a case for imposition of penalty is not made out and accordingly, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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