TMI Blog1999 (10) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 213 (T)]. 2. We have heard the arguments adduced by Shri J.P. Kaushik, ld. Counsel for the appellant/assessee and Shri S. Srivastava ld. DR appearing for the Revenue. 3. The assessee s counsel submits that while arguing the case before the Tribunal, he had specifically stated that penalty was not warranted and had cited the case law reported in [1997 (96) E.L.T. 398 (T) = 1997 (22) RLT 551] in which the Tribunal had held that in the background of what we have held above, I hold that the benefit of Modvat credit as held by the Bench in the case of Humidifire Unit available for the airconditioners. The appeal of the Revenue is therefore, allowed in the above terms. The order of the adjudicating authority is restored as prayed for. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the decision of this Tribunal in the case of Fuji Retrographic Industries v. CCE reported in 1993 (68) E. L. T. 883. In this case, this Tribunal has held a penalty of Rs. 20, 000/- has been imposed on the appellants by the Additional Commissioner under Rule 173Q. However, ingredients of the offence has been spelt out in the notice. No such rule thereof has been mentioned. Said Rule (1)(bb) is attracted in this case. This renders a manufacturer who takes credit of duty in respect of inputs wrongly, liable to penalty not exceeding 3 times the value of the goods in respect of which the contravention has been committed. Denying credit of duty under Rule 57A in excess of permissible amount is taking credit wrongly, irrespective of whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with the finding of the lower authorities and hold them as not eligible for Modvat credit under Rule 57Q . Whereas while finally passing the order in para 8, the Tribunal recorded as a result, we allow the Modvat credit on item (i), (ii) and (iv) above. We note that a mistake has crept in, in respect of item (i) inasmuch as it has been held that Modvat credit is allowed. Therefore, para 8 of the impugned order is amended to read as as a result, we allow the Modvat credit on items (ii) and (iv) above, appellants will be eligible for consequential benefit. 7. Revenue has also filed a reference application stating that a point of law arises which as formulated by the Revenue is Whether the items namely S. S. Plates, S. S. sheets, el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited above has been made in respect of material handling equipment and thus there is distinction between the two. He therefore, submits that in case of oil tanks, no reference has so far been made or allowed by the Tribunal. 10. We have heard the rival submissions on the issue. We note that a reference in respect of wires and cables has already been made holding that a point of law arises. We also note that the Tribunal had concluded in the case of Nova Udyog that a point of law arises in respect of material handling equipment as capital goods under Rule 57Q. Having regard to the fact that a decision has already been taken by the Tribunal that a point of law arises, we do not see any reason to disagree with that conclusion of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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