TMI Blog2007 (12) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal without proper appreciation of the said transactions has allowed the appeal of the assessee-company – revenue’s appeal allowed - 3 of 2005 - - - Dated:- 13-12-2007 - K.L. Manjunath and Arali Nagaraj, JJ. Shri Shivaprabhu S. Hiremath, CGSC, for the Appellant. Ms. Sundaraswamy Ramdas and Shri Anand, Advocates, for the Respondent. [Judgment per : K.L Manjunath, J]. - This appeal is by the Revenue challenging the order passed by the Customs, Excise and Sales Tax Appellate Tribunal, South Zone, Bangalore (hereinafter referred to as "the Tribunal" for short) in Appeal No. E/27/2002 dated 1-6-2004 whereunder the Tribunal has reversed the findings of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and proviso to Section 11A(1) of the Central Excise Act (hereinafter referred to as "The Act") read with Rule 57AB(l)(b) and explanation thereto of the said rules. The assessee was also required in the notice to show cause as to why interest in terms of Section 11AB of the Act should not be recovered on the duty proposed therein and why a penalty should not be imposed under Section 11AC of the Act. (d) The Commissioner of Central Excise, Belgaum, by his order dated 29-10-2001 confirmed the demand made by him in the said show cause notice. Aggrieved by the same the assessee filed appeal before the Tribunal contending that there is no violation of MODVAT credit rules since the capital goods comprising of the said power unit was not remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores and that pith and substance of the agreement entered into between the assessee and the purchaser is an out and out sale and therefore the Tribunal, without considering the facts involved in the case, has wrongly allowed the appeal of the assessee. 4. Per contra the learned counsel for the assessee contended that the transaction under the agreement between the assessee and M/s. Tata Electric Company could not be considered as an out and out sale of the power unit as it was only an arrangement of facilitation and that even to this date the power generated from the said power unit is being utilised by the assessee for manufacturing the cement in its factory and as such there has been no sale and no physical removal of the power unit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above transactions between the assessee-company and M/s. Tata Electric Company certainly amount to nothing short of physical removal of the power unit of the assessee in respect whereof MODVAT credit was availed by the assessee so as to attract the penal provisions of the said Act and the Rules. The said transactions of sale of power unit and simultaneous lease of premises are wisely resorted to by the assessee as a device to avoid the tax liability on it on the ground that the power unit was not physically removed from the premises of the assessee. Therefore, we are of the considered opinion that the Tribunal without application of mind and without proper appreciation of the said transactions in the light of the relevant provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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