TMI Blog2010 (6) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression or misstatement justifying invocation of extended period does not arise - imposition of penalty does not arise - E/1909/2007-SM(BR) - 716/2010-SM(BR)(PB) - Dated:- 30-6-2010 - Shri M. Veeraiyan, Member (T) REPRESENTED BY : Shri S.K. Bhaskar, JDR, for the Appellant. [Order (Oral)]. - Appeal No. E/1909/2007 is by the Department against the order of the Commissioner (Appeals) No. 87/RPR-I/2007 dated 30-3-2007. Cross-objection No. E/CO/125/2009 is related to this appeal. Since there is delay in filing of cross-objection, the application No. E/COD/125/2009 has been filed seeking condonation of delay. 2. None appears for the respondents in spite of notice. On earlier occasions on 13-5-2010, 23-5-2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period of limitation. As regards the penalty, he fairly concedes that in view of divergent decisions prevailing on the issue during the relevant time, the penalty may not be warranted. 6.1 I have carefully considered the submissions of the learned DR and perused the records including the grounds urged in the cross-objection. I find that the issue is no more res integra as the same has been decided by the Larger Bench of the Tribunal in the case of Vandana Global Ltd. cited supra. 6.2 The Larger Bench of the Tribunal in the case of Vandana Global Ltd. considered the following questions :- (a) Whether the term "capital goods" can include plant, structures embedded to earth? (b) Whether the goods like angles, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and final products in or in relation to process of manufacture as a condition for eligibility to credit as held by the Hon'ble Supreme Court in the case of Maruti Suzuki Ltd. v. CCE [2009 (240) E.L.T. 641 S.C.]. (d) It held that amendment to Explanation 2 to Rule 2(k) of Cenvat Credit Rules, 2004 is a clarificatory amendment and that the same is applicable retrospectively. (e) It was also held that the foundation and supporting structures are neither inputs nor components, spares and accessories of machinery, nor have they been listed for such inclusion in the definition of capital goods. With the above findings and observations, the question referred to the Larger Bench were answered as follows : "49.In the light of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he finding of the original authority that extended period of limitation can be invoked as the respondents have wrongly claimed the disputed items as capital goods when they are not capital goods cannot be upheld. The view taken by the respondents that these items are capital goods, undisputedly was also being taken by the Tribunal in some of the decisions, therefore, their belief that the impugned items were capital goods was bona fide belief. From the show cause notice and from the order of the original authority, no material is available to show that the respondents failed to furnish any relevant information which was required under the law. Therefore, the question of suppression or misstatement justifying invocation of extended period do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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