TMI Blog2016 (3) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to "disallow" credit in relation to 255.300 MTs of steel particularly when the appellant categorically stated that the said steel was obtained under non-cenvatable documents and the same has at no stage been controverted by Revenue. The Supdt., Central Excise in its letter dated 20.12.2014 has noted the appellant's submission in this regard and has not disputed the same. In addition Chartered Engineer's certificate given also certifies that Cenvat credit on 255.300 MTs of steel was not taken. Therefore the demand relating to this quantum of steel which works out to ₹ 8,01,724/- is not sustainable. Regarding 131.930 MTs of steel items eg. beams, joists, channels, angles, flat etc. used for supporting structures, the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against order-in-original dated 27.2.2015 in terms of which Cenvat credit of ₹ 12,50,458/- was disallowed and ordered to be recovered along with interest; equal mandatory penalty was also imposed. 2. The break up of the impugned Cenvat credit is as below: S. No. Description of head of Cenvat credit availed Amount (Rs.) 1. Supporting structures 11,74,206/- 2. Procurement of supporting structures 48,000/- 3. Welding electrodes 28,252/- Total 12,50,458/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. 2012 (286) ELT 194 (Bom.) wherein it has been held as under: 28. In the present case, the applicability of Section 11AC is not in dispute. It is also not in dispute that the assessee has paid the duty sought to be evaded as also the interest payable thereon under Section 11AB before the passing of the adjudication order. Admittedly, the assessee has not paid 25% of the penalty imposed under Section 11AC within thirty days from the date of the communication of the order of Central Excise Officer determining the duty sought to be evaded under Section 11A(2) of the Act which is the mandatory requirement under Section 11AC. Instead of paying 25% of the penalty within the stipulated time, the assessee has chosen to file an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MTs of steel items eg. beams, joists, channels, angles, flat etc. used for supporting structures, the appellant is only claiming the benefit on the ground of time bar and not on merit. There is no confusion or ambiguity that steel used for supporting structures would neither fall under the category of capital goods nor inputs as defined under Cenvat Credit Rules and therefore the credit thereon is not admissible, because the definition of capital goods or inputs by any stretch of imagination could not be understood to include steel used supporting structures within their ambit. Bona fide belief is a belief of reasonable person operating in an appropriate environment. Thus the contention of the appellant regarding bonafide belief that cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has not been expressly imposed by the adjudicating authority because non imposition of mandatory penalty by adjudicating authority cannot eclipse the vitality of the statutory provision regarding that. In the given circumstances I am not inclined to follow the ratio of Bombay High Court judgement in the case of Castrol India (supra) and would like to follow the reasoning of Gujarat High Court in the case of Ratnamani Metals (supra) which is also in conformity with the reasoning adopted by Delhi High Court in the case of K.P. Pouches Vs. Union of India - 2008 (228) ELT 31 (SC) and Punjab Haryana High Court in the case of CCE, Rohtak Vs. J.R. Fabrics (P) Ltd. - . - 2009 (238) ELT 209 (P H). 5. In the light of the foregoing, I pass the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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