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2015 (11) TMI 1335 - CESTAT AHMEDABAD

2015 (11) TMI 1335 - CESTAT AHMEDABAD - TMI - Rectification of mistake - Held that:- Tribunal had given the detailed finding for nonapplicability of the case laws as cited by the Appellant. It has also followed the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd (2007 (8) TMI 25 - CESTAT, MUMBAI) - Tribunal, after considering the facts of the case, had come to a conclusion that the Applicant used the capital goods for manufacturing the exempted finished goods .....

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rit in appeal filed - Decided against Assessee. - Application No.E/ROM/10536/2015 In Appeal No.E/1070/2010-SM - Order No. M/11297/2015 - Dated:- 13-11-2015 - MR. P.K. DAS, MEMBER (JUDICIAL) For the Petitioner : Shri J.C. Patel, Advocate For the Respondent: Shri Jitendra Nair, Authorised Representative ORDER Per: P.K. Das The Applicant filed this application for rectification of mistake in Final Order No.A/10282-10283/2015, dt.27.03.2015. 2. The learned Advocate appearing on behalf of the Applica .....

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ibunal, the findings are factually and patently incorrect and failed to appreciate the case laws in proper manner. Furthermore, in Para 12 of the order, the findings of the Tribunal on the decision of Hon'ble Karnataka High Court in the case of CCE Bangalore Vs Kailash Auto Builders Ltd 2012 (280) ELT 49 (Kar.), as relied upon by the Applicant, is factually and manifestly incorrect. Moreover, the Tribunal should have followed the judgment of Hon'ble High Court which would prevail over th .....

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on perusal of the records, I find that the assessee received the capital goods in the factory premises on 12.05.1997 and 12.05.1998. They had utilized the imported capital goods for manufacturing of the final product which was exempted from duty under Notification No.4/1997, dt.01.03.1997. The said notification was rescinded and replaced by Notification No.5/1998-CE, dt.03.06.1998. The appellants started payment of duty. On 17.03.1999, the assessee availed the CENVAT Credit in RG-23 C Part II on .....

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it eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of the capital goods. The relevant portion of the decision of Larger Bench in the case of Spenta International Ltd (supra) is reproduced below:- 8. The recent decision of the Tribunal? in CCE v. Precot Mills Ltd., 2007 (212) E.L.T. 483 follows the Surya Roshni decision and the Grasim Industries decision as well as the Sengunthar decision, to hold that the relevant date for determinati .....

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s the benefit of Nil rate of duty would be applicable, if no credit of the duty paid on the inputs used in the manufacture of such goods have been availed by the manufacturer under Rule 57A of Central Excise Rules 1944. He strongly relied upon the decision of Honble High Court in the case of S.T. Cottex Exports Pvt.Ltd (supra). In that case, by virtue of Notification No.29/2004-CE, optional 4% duty was payable on the manufactured goods and it cannot be said that the assessee used the capital go .....

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is supporting the contention of the learned Advocate. 13. The Learned Advocate also submitted that the entire demand is barred by limitation. In this context, it is contended that there is divergent view on the issue of eligibility of MODVAT Credit of capital goods which was decided by the Larger Bench of the Tribunal. On perusal of the impugned order, I find that there was a declaration filed by the assessee that the impugned capital goods would not be used exclusively in the production of fina .....

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ed product and then they are eligible to avail CENVAT Credit. Thus, it is a clear case of mis-declaration to evade payment of duty. Hence, the extended period of limitation would be applicable. 4. On plain reading of the Tribunals order, it is clear that the Tribunal had given the detailed finding for nonapplicability of the case laws as cited by the Appellant. It has also followed the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd (supra). 5. The Tribunal, .....

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intendent of Central Excise, Range-III, North Daman Division, Daman. In the said statement, Shri Nalin Desai, had admitted, inter alia, that in the declaration filed with the Central Excise Department, in respect of the said capital goods the assessee have declared (Sr.No.4 of the relevant declaration) that the capital goods (in question) shall not be used exclusively for the production of a final product which is exempt from the whole of duty of Excise leviable thereon or is chargeable to Nil r .....

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