TMI Blog2016 (4) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly in the manufacture of the final product and thus, the Cenvat credit is not available to the appellant - since the issue relates to interpretation of the provisions of cenvat statute, Section 11AC of the CEA, 1944 cannot be invoked - appeal disposed off - decided partly in favor of appellant. - No.E/1196 to 1198/2007-EX [SM] - FINAL ORDER NO. 56436-56438/2016 - Dated:- 13-4-2016 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant : Ms. Sukriti Das, Advocate Present for the Respondent: Mr.M.R. Sharma, D.R. ORDER These appeals are directed against the impugned order dated 14th February, 2007 passed by the Commissioner (Appeals-II), Customs and Central Excise, Jaipur, upholding disallowance of Cenvat Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2015 (39) STR 726 (Guj.) to state that that Central Excise duty paid on Cement is permissible as cenvat credit. 4. On the other hand, Shri M.R. Sharma the ld. D.R. appearing for the respondent submits that cement has not been used by the appellant in or in relation to manufacture of the final product, and thus, in terms of the definition of input, cement shall not be eligible for cenvat benefit. He further submits that in the case of the appellant itself, the Hon ble Supreme Court and the Hon ble Rajasthan High Court have held that cement being used as a construction material, credit should not be available to the appellant. In this context, he relies on the judgment of Hon ble Supreme Court in the case of Hindustan Zinc Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that cement used for construction /repair or maintenance of mines not to be considered as input for the purpose of taking cenvat credit. Hence, Cenvat credit on Cement in this case is not available to the appellant. However, since the issue relates to interpretation of the provisions of cenvat statute, I am of the view that Section 11AC of the Central Excise Act, 1944 cannot be invoked, justifying imposition of penalty. Inasmuch as the said provision has the applicability, in the eventuality, where the assessee is involved in the activities concerning fraud, collusion, wilful misstatement with intend to evade payment of duty. Thus, in absence of those ingredients, the penalty confirmed in the impugned order is liable to be set aside. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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