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2016 (5) TMI 897 - CESTAT KOLKATA

2016 (5) TMI 897 - CESTAT KOLKATA - 2016 (340) E.L.T. 384 (Tri. - Kolkata) - Imposition of penalty - Cenvat credit wrongly taken - M.S. Angle, M.S. Channel, G.C. Sheet and Welding Electrodes are used for making support structures for the capital goods - Held that:- there were conflicting judgments regarding admissibility of Cenvat Credit on such items before Larger Bench delivered judgments in the case of Vandana Global Ltd. Vs. CCEx., Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. When con .....

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ance placed by the appellant on the drawback schedule published by the Department and export made by other appellants is not of any help because it is not coming out of the list of other exporters whether any specific processes were also undertaken by those exporters on the “Copper Bonded Grounding Rods” exported. Accordingly, it is held that classification of the goods manufactured by the appellant will be CETH 8538.00 as parts of lightning arrester. - Period of limitation - Demand and impo .....

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issue of show cause notice and penalty imposed upon the appellant under Section 11AC is required to be set aside. - Decided partly in favour of appellant - Excise Appeal No. : 450/2007 - A/75412/2016 - Dated:- 13-5-2016 - SHRI H.K. THAKUR, TECHNICAL MEMBER AND SHRI P.K. CHOUDHARY , JUDICIAL MEMBER For the Petitioner : Sri M.K. Guha Neogy, Consultant For the Respondent : Sri S. S. Chatterjee, Supdt. (A.R. ORDER PER SHRI H.K. THAKUR This appeal has been filed by the appellant against Order-in-App .....

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Ld. Consultant submitted that the entire amount of CENVAT Credit denied alongwith interest, has been paid by the appellant. That no penalty is imposable upon the appellant for wrongly taking CENVAT Credit because the issue was disputed and larger bench in the case of Vandana Global Ltd. Vs. CCEx., Raipur reported in 2010 (253) ELT 440 (Tri-LB) decided the issue. That once an issue required larger bench s decision then the appellant cannot be held responsible for suppression with intention to eva .....

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Bonded Grounding Rods have been classified under 7215.02. He also furnished a list of exporters of similar goods, down loaded from import export data, where Copper Bonded Grounding Rods have been classified under Central Excise Heading 7215 by these exporters. It is thus the case of the appellant that the classification of the product has been correctly claimed under 7215. Ld. Consultant also argued that demand is time barred because 100% quantity of Copper Bonded Grounding Rods have been expor .....

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g rods have been tapered at one end for a specific use. Ld. A.R. also made the bench go through last para on internal page 2 of the show cause notice to argue that Shri Josh, Director of the appellant in his statements dated 22/9/2004 and 9/9/2005 have specifically admitted that copper bonded grounding rods are specially used for earthing purposes as a part of lightning arrester. It was thus strongly argued by the Ld. A.R. that the classification of the goods Copper Bonded Grounding Rods has bee .....

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is time barred ? 6. So far as imposition of penalty, with respect to Cenvat Credit of ₹ 1,23,905/- is concerned, it is observed that this credit was taken by the appellant with respect to M.S. Angles, M.S. Channels, G.C. Sheet and Welding Electrodes used by the appellant in the making of support structures of the capital goods. There were conflicting judgments regarding admissibility of Cenvat Credit on such items before Larger Bench delivered judgments in the case of Vandana Global Ltd. V .....

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of the appellant that this product is classifiable under Central Excise Tariff Heading 7215 as per the drawback schedule published by the Department and classification claimed by the other exporters who are manufacturing similar goods. On the other hand, the Department is of the view that the goods manufactured are given special processes to make them solely and specifically usable in lightning arrester systems. It is observed from the case records that special processes are done by appellant on .....

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