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2017 (11) TMI 763 - AT - Central ExciseIrregular availment of CENVAT credit - capital goods - whether Modvat Credit of ₹ 38,53,942/- on capital goods with interest and penalty is recoverable from the appellant M/s SKPYL and consequent confiscation of seized capital goods, plant and machineryas directed be confirmed and penalty on other appellants be upheld? Held that: - Even though, in the subsequent statement of the Director Shri. Tayal, it has been stated that those capital goods were removed from the factory to be installed for repairing purpose at M/s SKPL, however, no corroborative evidence was placed to substantiate the claim furnishing the details of repairing to be carried out and the difficulty of its repairing in the premises of the appellant M/s SKPYL. Therefore, the plea of the appellant that it were cleared for repairing cannot be acceptable - No contrary evidence has been placed by the appellant to rebut the said finding in their present Appeals before this forum. Time limitation - Held that: - the evidence brought on record revealed that the capital goods were installed in the premises of M/s SKPL through solid foundations. Accordingly, the demand with interest has been rightly issued and confirmed invoking larger period of limitation against M/s SKPYL. Confiscation of capital goods, on which credit availed at M/s SKYPLbut found in the premises of M/s SKPL - Held that: - confiscation do not sustain as removal of the duty paid capital goods without intimation to the department, cannot make the capital goods non-duty paid and offending one, inviting confiscation of the same. Penalty - Held that: - the penalty equal to the credit wrongly availed imposed on them is justified - the penalty imposed on M/s SKPL and Sh. Tayal, Director appears to be too harsh, and in the interest of Justice, it is reduced to ₹ 2.00 Lakhs and ₹ 1.00 lakh, respectively. Appeal allowed in part.
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