TMI Blog2014 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tribunal due to which it cannot be said that CENVAT credit wrongly taken or in contravention of provision of rules, no penalty can be imposed under Section 11AC - I modify the impugned order insofar as the demand of duty for the extended period of limitation and the penalty are set aside and the demand of duty for the normal period is upheld - Decided partly in favour of assessee. - Appeal No. E/516/2012 - Final Order No. 40618/2013 - Dated:- 6-12-2013 - Shri P.K. Das, J. For the Appellant : Shri M.N. Bharathi, Advocate, For the Respondent : Shri K.S.V.V. Prasad, JC (AR) JUDGEMENT The appellants are engaged in the manufacture of iron castings classifiable under Chapter 73 of the First Schedule to CETA, 1985. They avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would apply and upheld the adjudication order. 2. The learned counsel on behalf of the appellant drew the attention of the Bench the ER 1 returns showing that the appellant had mentioned the availment of CENVAT credit on angles, channels, plates etc. with the suppliers name. He submits that there is no suppression of fact with intent to evade payment of duty. He further submits that the issue is still debatable insofar as the Tribunal in the case of CCE Vs. A.P.P. Mills Ltd. -2013 (291) ELT 585 allowed the credit on these items used as supporting structure for machinery would be treated as capital goods. He further submits that the Tribunal in the case of CCE Vs. Orion Ferro Alloys Pvt. Ltd. 2010 (259) ELT 84 dropped the demand of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured by them. It is further observed that ER-1 returns filed by the appellant do not contain any details with regard to usage of impugned cenvatable goods. 5. The learned AR on behalf of the Revenue relied upon the decision of the Hon ble Andhra Pradesh High Court in the case of Sree Rayalaseema Hi-Strength (supra), wherein it has been held that once the assessee availed credit under Rule 2(k) of the Rules, 2004 without entitlement it amounts to contravention of the rule with the intention of evading payment and the extended period of limitation would be available to the Revenue. In the case of Cosmos Ispat (supra), the Tribunal observed that admittedly, the appellant has not informed the Department about the use of these items in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 does not arise. On the same ground, the question of imposition of penalty does not arise. The Tribunal in the case of APP Mills Ltd. (supra) allowed the credit on these items used for structural suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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