TMI Blog2017 (4) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with law. Penalty u/r 173Q of CER, 1944 - Held that: - there is no contumacious conduct and/or suppression of facts on the part of the appellant. Therefore, no penalty is imposable under the provisions of Rule 173Q of CER, 1944. Appeal allowed by way of remand. - E/3406/2006-EX[SM] - A/70287/2017-SM[BR] - Dated:- 16-12-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Vineet Kumar Singh, Advocate for the Appellant (s) Shri Pawan Kumar Singh, Supdt. for the Department (s) Per Mr. Anil Choudhary : The issue in this appeal is, whether the appellant-assessee is entitled to Modvat Credit and set of the input tax credit with the output tax assessed for the period April, 1999 to August, 1999 and the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period of limitation is not invocable for demanding the duty. Thereafter, Revenue preferred an ROM pleading that demand for the period April, 99 to August, 99 (for normal period) is not hit by limitation of time. This Tribunal vide order dated 01.04.2005 rejected this application holding that - in view of the findings of the tribunal regarding non-applicability of the extended period of limitation, for which only the final order passed earlier was recalled, there is no mistake apparent on the face of record. 3. Thereafter, in pursuance to orders of this Tribunal, Ld. Commissioner vide O-I-O dated 14.06.2006 have held that the appellant is liable to pay Excise duty of ₹ 14,61,644/- for the normal period, as directed by this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made adequate declarations from time to time and were supplying to Railways, a department of the Government of India. In this view of the matter, prays that the penalty be set aside. 5. The Ld. AR for Revenue relies on the impugned order. He further states that the claim for Modvat being a fresh ground, is not available to the appellant, as the same was not an issue before the Tribunal in the earlier round of litigation. 6. Having considered the rival contentions, I hold that Modvat Credit is deniable only in case of fraud and contumacious conduct on the part of assessee. That being not the case, I find that the Ld. Commissioner have erred in denying the benefit of Modvat/Cenvat Credit to the appellant. Accordingly, I hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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