TMI Blog2010 (6) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... within limitation period – matter remanded - E/819/2008 - A/877/2010-WZB/AHD - Dated:- 24-6-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Willingdon Christian, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - The appeal is being decided in pursuance to order of Hon'ble Gujarat High Court vide which the matter stand remanded to the Tribunal for fresh consideration on the point of limitation and penalty. Accordingly, we have heard the learned advocate Shri Willingdon Christian, appearing for the appellant and Shri R.S. Sangia, learned SDR appearing for the Revenue. 2. As per facts on record, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them by the Tribunal in case of Rajhans Metals Pvt. Ltd. v. CCE, Rajkot as reported in 2007 (8) S.T.R. 498 (Tri.-AHD) as also in the case of Atul Auto v. CCE, Rajkot being Order No. A/332/WZB/AHD/08, dated 29-2-08 [2009 (237) E.L.T. 102 (T)]. In fact, submits the learned advocate that the matter was challenged before Commissioner (Appeals) only on the issue of limitation and penalty. He submits that the same very judgment of the Tribunal in case of Rajhans Metals (P) Ltd., which stand relied upon by the Commissioner (Appeals) in his impugned order, has observed that as the issue involved is of legal interpretation, no mala fide can be attributed to the appellant and as such, the penalty stand set aside. He submits that the basis for invoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the manufacture of the final product or for any other purpose within the factory of production whereas in this case, the services were used at Wind Turbine Generator for generating electricity, which is exempted from duty, at a site outside the factory premises. Thus, there is no scope for a different interpretation. Moreover, under the Self-Assessment Scheme, it is obligatory on the assessee to remove the goods on proper payment of Central Excise duty and to ensure correct availment of Cenvat Credit in accordance with the Rules which the appellants have failed to honour. The wrong availment of credit came to light only after it was detected by the Department and investigated. In view of the above, I hold that the larger period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear and without any scope of doubt, the same cannot be made reason for invoking longer period. The legal interpretation of any provisions are capable of two different interpretations and if the assessee has interpreted the same to his benefit, it cannot be said that there was any suppression or mala fide on his part. We also note that not only the present applicant but also all other assessess similarly situate were availing benefit of Modvat Credit in respect of input services availed at the site of generators and were using same for clearance of the goods at the factory situated away from the generator site. This fact becomes clear from the Tribunal's decision in case of Rajhans Metals Pvt. Ltd. and other judgment in case of Atul Auto Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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