TMI Blog2021 (2) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... KGARH CEMENT (A DIVISION OF CENTURY TEXTILES INDUSTRIES LIMITED) VERSUS THE COMMISSIONER OF CUSTOMS CENTRAL EXCISE [ 2017 (8) TMI 829 - BOMBAY HIGH COURT] found that the Authority had not rendered a factual finding as to the manner of use of manufacturing of final products in respect of the capital goods claimed by the Assessee therein. It is in that context the Division Bench remanded the proceedings to the Authority. In the present case, going by the test laid down in the case of M/S JAYASWAL NECO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2015 (4) TMI 569 - SUPREME COURT] whether such capital goods are utilized for the purpose of manufacturing of final products, a finding of fact has to be rendered in respect of the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Respondent-Assessee for recovery of the Modvat Credit availed by the Respondent- Assessee, as the Department was of the view that the Respondent had wrongly availed of the said Modvat Credit. The Order-in- Original was passed by the Commissioner, Central Excise, Nagpur on 18 March 1996, whereby Modvat Credit of ₹ 2,75,34,153/- was allowed under Rule 57-Q of the Central Excise Rules, 1944 on H.R.Plates/Coils used in conveyors. The Appellant- Department filed an Appeal bearing No. E-1552 of 1996, which was dismissed by the Tribunal by the impugned order dated 3 June 1996. The Tribunal had relied upon its earlier order dated 17 October 2001 in Appeal No.E-1446 of 1996 (Bom.). 3. When this Appeal came up for consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to avail the credit on H.R. Plates/coils used for conveyor galleries being in the nature of civil construction which is in the fact in nature of immovable property being a non excisable goods attached to earth duly not specified in terms of the definition specified in the explanation appended to Rule 57Q of the erstwhile Central Excise Rules, 1944. 3. Whether it right not to impose penalty under Rule 173Q of erstwhile Central Excise Rule 1944 especially when for imposing of penalty of wrong utilization of Modvat credit under Rule 173Q (1)(bb) guilty intention is not required to be proved. 5. The learned Counsel for the Appellant submits that the foundation of the impugned order passed by the Tribunal is its earlier deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or processing goods or in bringing about any change in any substance for the manufacture of final product are to be treated as capital goods . 7. The Division Bench of this Court in Manikgarh Cement (supra) found that the Authority had not rendered a factual finding as to the manner of use of manufacturing of final products in respect of the capital goods claimed by the Assessee therein. It is in that context the Division Bench remanded the proceedings to the Authority. 8. In the present case, going by the test laid down in the case of Jayaswal Neco (supra) whether such capital goods are utilized for the purpose of manufacturing of final products, a finding of fact has to be rendered in respect of the each of the manufacturing proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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