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2016 (3) TMI 482 - CESTAT NEW DELHI

2016 (3) TMI 482 - CESTAT NEW DELHI - TMI - Admissibility of cenvat credit - denial of credit by observing that transmission towers, being permanently fixed/ embedded to earth and hence being immovable property, cannot be considered to be goods - Held that:- Commissioner (Appeals) has set-aside the penalty on the ground that there was no allegation of suppression against the assessee and there was also no intention to evade duty, as the appellant being a Government Undertaking. It is not the Rev .....

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ned order. However, as ld. DR has referred to the fact that part of the extended period may fall within the limitation period, remand the matter to the original adjudicating authority for examining the said aspect alongwith the appellant s plea that the credit was taken only in April 2010 and not subsequently. The appeal is disposed of in the above manner. - Excise Appeal No. 51047 of 2015-SM - Final Order No. 50991/ 2016 - Dated:- 4-3-2016 - Ms. Archana Wadhwa, Member ( Judicial ) For the Appel .....

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r facility in the oxygen plant. The lower authorities have denied the credit by observing that transmission towers, being permanently fixed/ embedded to earth and hence being immovable property, cannot be considered to be goods. For the said proposition, the lower authorities have relied upon the Hon ble High Court of Mumbai decision in the case of Bharti Airtel Limited vs. CCE, Pune-III 2014 (35) STR 865 (Bom. HC). 2. Learned Advocate appearing for the appellant submits that apart from the said .....

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as no malafide on their part. She submits that in such a scenario the extended period of limitation would not be applicable inasmuch as the same also requires presence of malafide. Therefore, the said demand which was raised on 21.07.2011 for the period April 2010 is hopelessly barred by limitation. 3. Countering the arguments, ld. DR submits that the disputed period is from April 2010 to September 2010 and as such, part of the demand would fall within the limitation period. 4. Ld. Advocate for .....

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mposition of penalty of ₹ 9,79,204/- under rule 15(2) of Cenvat Credit Rules read with Section 11C of the Central Excise Act, 1944 I find that the penalty under the said rule and Section is imposable only in case of suppression of facts with intention to evade payment of Central Excise duty. It is on record that the department has detected said availment of cenvat credit during the course of scrutiny of ER.1 return for the month of April 2010 to September 2010 hence the allegation that the .....

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,29,218/- on steel structure used for making of Transmission Towers has been disallowed. I find that admissibility of cenvat credit on Transmission Towers has been in dispute. There are conflicting decisions on the admissibility of cenvat credit in respect of above items. In the case of CCE, Raipur vs. M/s Jindal Steel & Power Ltd. 2011 (263) ELT 557 (Tri. Del.) as relied upon by the appellant, the cenvat credit on above items has been allowed whereas in a recent decision of Hon ble High Cou .....

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nstant case is also of interpretational nature. Apex Court in the case of M/s Uniflex Cables Ltd. vs. CCE Surat-II (211 (271) ELT 161 (SC) has held that penalty is not imposable when issue involved is of interpretational nature. Also in the case of Asian Tubes Ltd. vs. CCE Ahmedabad (2011 (263) ELT 707 (Tri. Ahmd.) it has been held that if the disputed issue is a issue of interpretation, there is no justification for imposition of penalty. 10.1 In view of the above I find that imposition of pena .....

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