TMI Blog2012 (11) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... or invoking the provisions of Section 11A(2B) of Central Excise Act, 1944 - no penalty is imposable on the appellant - E/1915/2010 - A/1981/2011-WZB/AHD - Dated:- 8-11-2011 - Shri B.S.V. Murthy, J. REPRESENTED BY : Shri S.R. Dixit, Advocate, for the Appellant. Shri R. Nagar, AR, for the Respondent. [Order]. During the course of verification of examination of duty paying documents evidencing payment of central excise duty in respect of capital goods and availment of the same as cenvat credit, it was felt that appellant had wrongly taken cenvat credit in respect of several capital goods during the period September 1999 to November 2003 and proceedings were initiated. This is the second round of litigation. The impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates can be considered as accessories of the machine. Further, he also relies upon the decision of the Tribunal in the case of C.C.E., Surat v. Mangalam Rasayan P. Ltd. reported in 2007 (219) E.L.T. 957 (Tri. - Ahmd.) there also a view was taken that modvat credit on chlorine toners is eligible. In that case also it was submitted that a pipe was connected to the toner to fill the toner and therefore toner is eligible. The learned A.R. however submits that the Tribunal in the remand order had directed the lower authorities to consider whether the chlorine cylinders were used as storage tank or not and he drew my attention to the show cause notice wherein it has been clearly stated that cylinders were being used for transportation. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empty chlorine cylinder. In any case, storage tank becomes eligible from 1-3-2001 and from the records it is not clear whether the benefit of credit after 1-3-2001 has been extended or not. This aspect will also have to be considered by lower authority. 5. The observations of the original adjudicating authority in the order passed after the remand order are as under : Item No. 5. Empty Chlorine Cylinder (Credit involved is Rs. 4,16,800/-) The Hon ble CESTAT in their order has clearly held that benefit of modvat credit to chlorine cylinders would be extended only after 1-3-2001. From the SCN it is noticed that the modvat credit on empty chlorine cylinders being sought to be disallowed, have been availed during the period prior to 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another storage tank for utilization thereafter. In fact the order specifically states that if the chlorine is transferred to a storage tank, the usage of cylinder will be only for transportation and in such a situation credit may not be available and thereafter goes on to observe that otherwise credit may be admissible since cylinder performs dual function of storage tank as well as transportation. The order clearly says that if the cylinders function as storage tank as well as used for transportation credit may be admissible. What was left to both the lower authorities to examine was whether credit would be admissible in such a case or not. The matter was remanded for verification of this aspect and the actual use. Further, in the last s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use. This being the position, the decision of the Tribunal in the case of Mangalam Rasayan Pvt. Ltd. would be squarely applicable to the facts of this case. In any case, the show cause notice was issued in 2004 whereas the receipt of the cylinders was in 3-5-2000. In view of the fact that issue of eligibility of cenvat credit on plastic crates was referred to Larger Bench and the decision of the Larger Bench came only in the year 2009 and also in view of the fact that there was a decision of the Tribunal in the case of Mangalam Rasayan Pvt. Ltd., appellants cannot be found fault with if they entertain a bona fide belief that credit was admissible to them. Therefore extended period could not have been invoked in this case. Thus on limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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