TMI Blog2011 (5) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... hout discussing as to how the provisions of Section 11AC or Rule 15 are applicable. He has also not discussed the applicability of Rule 25, under which penalty stands imposed upon the appellants. - Matter remanded back to commissioner (appeals) - E/947 of 2008 - - - Dated:- 4-5-2011 - Mrs. Archana Wadhwa, Mr. B.S.V. Murthy, JJ. Appellant : Shri Hardik Modh, Advocate Respondent : Shri R.S. Srova, JDR Per : Mrs. Archana Wadhwa; The appellants are engaged in the manufacture of excisable goods falling under Chapter 73 and 84 of the Central Excise Tariff Act, 1985. During the year 2005-06 they received capital goods and availed modvat credit on the same to the extent of 50%. The remaining 50% credit was availed in the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004 and Rule 25 of the Central Excise Rules, 2002. 4. Being aggrieved with the said order, the appellant filed appeal before Commissioner (Appeals) challenging imposition of penalty upon them. The Commissioner (Appeals) rejected the same, hence the present appeal. 5. Learned advocate appearing for the appellants clarifies that he is only challenging the penalty imposed upon the appellants. Drawing our attention to the provisions of Rule 4(5) (a), he submits that the said Rule requires the assessee to pay back the cenvat credit availed in respect of the capital goods, if the same are not received back within a period of 180 days from the date of their clearance. Hew submits that there is no time limit prescribed in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een sent for job work. Thereafter, the above capital goods were not received back by the appellant within 180 days. These facts have not been disputed by the appellant. As per Rule 4(5)(a) fo the Cenvat Credit Rules, 2004, the appellant can take and utilized the cenvat credit again only after the capital goods were received back in the factory. Therefore, Rule 4(5)(a) has not been followed. The appellant had contravened the Rule 4(5) (a) ibid by following provisions properly. The case laws cited by the appellant are not the same to the present case in letter and spirit. Accordingly, I reject the appeal and uphold the above OIO. ` As is clear from the above, the appellate authority has simply upheld the order of the original adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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