2008 (2) TMI 157

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..... allowed CENVAT credit on other capital goods to the assessee and also imposed on them a penalty of Rs. 7,87,253/-. In appeal, the first appellate authority allowed CENVAT credit to the assessee in respect of pipes & fittings as well as plastic crates and sustained the decision of the lower authority in respect of the rest of the capital goods viz, material handing equipments, fire extinguisher and structural items. Learned Commissioner (Appeals) also reduced the penalty to Rs. 1 lakh. In the present appeal of the assessee, the challenge is only against denial of CENVAT credit on material handling equipments and against penalty. In the Revenue's appeal, the challenge is against the grant of CENVAT credit on plastic crates, amounting to Rs. 5 .....

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..... ing No. 94.03 had been mentioned in the relevant invoices due to inadvertence. It is also stated that the delivery pallets (trolleys) could not be understood as furniture falling under Heading 94.03. Learned Counsel for the assessee has also referred to a letter issued to them by the supplier of trolleys, wherein the correct classification of the goods had been confirmed as Heading 84.28. He has also relied on case law in support of his contention that the benefit of CENVAT credit was not to be denied by mere reason of wrong Tariff Heading having been mentioned in the duty-paying document. In this connection, counsel has referred to Tata Yodogawa Ltd. v. Collector of Central Excise, Jamshedpur [1999 (113) E.L.T. 879 (Tribunal)] and ITC Ltd. .....

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..... rniture and parts thereof". By no stretch of imagination can the trolleys be considered to be furniture. If the original authority or the first appellate authority had any doubt in this regard, they ought to have referred the matter to the proper officer of Central Excise having jurisdiction over the manufacturer of trolleys and obtain their report. In the absence of contra evidence from the side of the department, the claim of the assessee (which is supported by affidavit etc. of the manufacturer of the capital goods) that the trolleys were correctly classified at the supplier's end under Heading 84.28 has to be accepted. In this view of the matter, CENVAT credit on material handling equipments must be held to be admissible to the assessee .....

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