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TMI Blog2011 (8) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order passed by the Adjudicating Authority and Order-in-Appeal passed by the Appellate Authority by holding that the question that arose for consideration on facts are identical to the decision in respect of the same assessee in Order-in-Appeal No. 414/2002, which has become final and therefore the order passed by the Appellate Authority and Adjudicating Authority could not be sustained and appellants-respondents herein have rightly and correctly availed the benefit of Modvat credit in respect of inputs used in the manufacture of the final products and accordingly set aside the order passed by the First Appellate Authority and the Adjudicating Authority. 2. The appeal has been admitted on 13-6-2008. The substantial questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Boiler falling under Ch. Heading No. 8402.90 (3) Cooling and Drying machinery falling under Ch. Heading No. 8419.00 and its parts and claimed exemption from payment of duty on the above goods under Government of India Notification No. 67/95-C.E., dated 16-3-1995 as amended for captive consumption of the goods. They also filed the Modvat declaration under Rule 57G of the Central Excise Rules, 1944 for the availment of the said benefits in respect of the inputs intended to be used in or in relation to the manufacture of the above said excisable goods declared by them in the said classification declaration No. 1/96-97 with effect from 23-7-1996 and No. 4/96-97 with effect from 1-10-1996, respectively. The respondent availed the benefit of Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the declared final excisable products and availed the said Modvat benefit by misleading/misdeclaring to the department. Further, held that there was no manufacturing activity and the respondent was not entitled to Modvat credit in respect of the said sum of Rs. 1,91,294/- for the period from 20-7-1996 to 28-11-1996. Accordingly a show cause notice was issued on 22-3-2000 to show cause as to why : (i) the said Modvat credit of Rs. 1,91,294/- should not be disallowed and recovered from them under Rule 571(1)(ii) of the Central Excise Rules, 1944. (ii) Penalty should not be imposed on them, under Rule 571(4) of Central Excise Rules, 1944. (iii) Interest should not be deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the date of actual payment of the duty demanded under para. 4. Being aggrieved by the said order passed by the Adjudicating Authority dated 29-11-2000 the assessee preferred Appeal No. 154/2003 on the file of the Commissioner of Central Excise (Appeals), Mangalore in A. No. 63/2001 (BM) and the Appellate Authority by order dated 23-5-2003 upheld the order passed by the Adjudicating Authority, however, reduced the penalty and accordingly dismissed the appeal. Being aggrieved by the said order the assessee preferred Appeal No. CE/717/2003 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Bangalore and the Tribunal by order dated 13-12-2006 passed a final order and held that the process which was being considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of facts, the Revenue was justified in availing the extended period for issuing show cause notice and therefore the substantial questions of law may be answered in favour of the Revenue. 7. Learned counsel appearing for the respondent submitted that the order passed by the CESTAT is justified as the appellant-Revenue has accepted the order passed in OIA No. 414/2002-C.E., dated 4-7-2002 wherein the identical question regarding the availment of Modvat credit on the basis of process involving similar to the present case has been upheld and the said order having been accepted by the Revenue by not preferring any appeal, no contrary view could be taken by the Adjudicating Authority and the Appellate Authority. Therefore the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 4-7-2002, the Tribunal was justified in holding that the Revenue having accepted the earlier order in OIA No. 414/2002-C.E., dated 4-7-2002, could not have contended that the assessee is not entitled to Modvat credit as the said appeal was involved identical facts and the process involved and input are the same. 10. It is well settled that the Tribunal is the final authority on the question of fact and even otherwise on perusal of the facts and the order in OIA No. 414/2002-C.E., dated 4-7-2002, we find that the process involved and input were the same. Therefore the order passed by the Tribunal is justified and accordingly we answer the first substantial question of law against the Revenue. 11. Since we have considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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