2004 (1) TMI 476

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..... l)]. - The appellants are challenging the imposition of penalty which has been confirmed in the Order-in-Appeal No. 20/2003, dated 24-1-2003. It is contended by the appellants that penalty is not imposable in the present case as admitted duty was paid five months before the issue of show cause notice and they rely on the following judgments :- (a)        G.K. .....

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..... sp;       CCE, Chennai v. ABT Industries Ltd. - [2002 (150) E.L.T. 671 (Tribunal) = 2002 (49) RLT 846 (CEGAT - Che.)] 2. It is contended that the issue is that appellants have availed Modvat credit on Diesel Generating set under Rule 57Q despite same being physically not available in the premises. However, they reversed the credit five months before issue of sho .....

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..... the issue in detail and found that the appellants had contravened the provisions of law and therefore penalty was imposable. He has also noted the details of circumstances under which the penalty is imposable. He referred to paragraphs 8.5 & 8.6 of the Commissioner's order and pleaded for confirmation of penalty under Rule 173. 6. Ld. DR also submitted that the credit was taken in the year 1 .....

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..... t utilized the Modvat credit. However, partial electricity was used by them. 9. On a careful consideration of the submissions, I notice that the appellants had bona fide belief that D.G. set could be utilized by both the units although installed in M/s. D. Engineering (P) Ltd., in terms of the permission granted by the Electricity Board. M/s. D. Engineering (P) Ltd. is stated to have not uti .....

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..... issue of show cause notice. Therefore, in terms of judgments noted supra, penalty cannot be imposed, in such circumstances. The penalty proceedings against appellant is set aside by allowing the appeal. I am of the considered opinion that action in confiscating the DG set and imposing redemption fine is not as per law as the Diesel Generating set had suffered duty and it was not non-duty paid clea .....

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