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2015 (9) TMI 198 - CESTAT KOLKATA

2015 (9) TMI 198 - CESTAT KOLKATA - TMI - Recovery of CENVAT Credit - CENVAT Credit on cylinders used in transporting various gases - capital goods - Held that:- There is no allegation of suppression of facts in availing CENVAT Credit on the cylinders during the relevant period. Needless to mention that the appellant while claiming CENVAT Credit on these cylinders as capital goods, disclosed all the facts to the Department. Hence, imposition of penalty under sub-rule (2) of Rule 13 of CENVAT Cre .....

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al No. E/589/2011 - ORDER No. FO/A/75431/2015 - Dated:- 7-8-2015 - Dr. D. M. Misra, Hon ble Judicial Member,J. For the Petitioner : Sri B.N. Chattopadhyay, Consultant For the Respondent : Sri A.K. Biswas, Supdt. (A.R.) ORDER Per Dr. D. M. Misra This is an appeal filed against order-in-appeal No. 56-57/Kol-III/2011 dated-01/03/2011 passed by the Commissioner of Central Excise (Appeals). 2. Briefly stated the facts of the case are that the appellant had availed CENVAT Credit on cylinders used in t .....

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argument of the appellant that that CENVAT credit on cylinders could be admissible treating the same as input if not capital goods. Neither side filed Appeal against the said Order. 4. On de novo adjudication, after production of necessary documents, the Ld. Adjudicating authority dropped the demand to the tune of ₹ 3,59,920/- accepting the contention that the cylinders were used in the transportation of dutiable gases and confirmed ₹ 1,24,340/- wherever the same were used in transp .....

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Shri B.N. Chattopadhyay submitted that the Appellant in the present Appeal are not disputing the recovery of CENVAT Credit of ₹ 1,24,340/- and the interest liability; their challenge to the Order is limited to the imposition of penalty of ₹ 1,24,340/- under Section 11AC of CEA, 1944 read with Rule 13 of CENVAT Credit Rules, 2002. Ld. Consultant submits that under a bonafide belief, they have availed CENVAT Credit on cylinders used in transferring/transporting of gases from the facto .....

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for transferring the exempted goods, they accepted their liability and reversed total credit of ₹ 1,21,340/-. In these circumstances, imposition of penalty under Section 11AC equivalent to the credit confirmed in the de novo proceeding is erroneous and untenable in law. It is his submission that the Ld. Commissioner (Appeal) ought to have set aside the penalty under Section 11AC of CEA, 1944. 7. Per contra, Ld. A.R. for the Revenue submits that the applicant had availed CENVAT Credit in c .....

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customer s place. Also, it is not in dispute that they have initially availed CENVAT Credit on these cylinders claiming it as capital goods. But later when the case was remanded by this Tribunal they have accepted that cylinders are used are inputs and not capital goods. Consequently, they have placed necessary evidences and established before the adjudicating authority that the entire CENVAT Credit was not in relation to transfer of exempted gases only but both dutiable as well as exempted gas .....

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ENVAT Credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty not exceeding the duty on the excisabl .....

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