TMI Blog2008 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed - EDM-261/2005 - A-1007/KOL/2008 - Dated:- 16-10-2008 - Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) Shri Ravi Raghavan, Advocate, for the Appellant. Shri J. A. Khan, SDR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. - Heard both sides. 2. This Appeal is against denial of credit amounting to Rs. 1,24,55,573/- (Rupees One Crore Twenty Four Lakhs Fifty Five Thousand Five Hundred and Seventy Three only) and Rs. 45,86,664/- (Rupees Forty Five Lakhs Eighty Six Thousand Six Hundred and Sixty Four only) and imposition of penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) by the adjudicating Commissioner. The denial of credit is on two counts. An amount of Rs. 1,24,55, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57T(8) of the Central Excise Rules, 1944 permitted credit on attested photocopies of bill of entry if the Assistant Collector is satisfied that the duplicate copy of invoice or triplicate copy of bill of entry have been lost in transit. In this case it appears that the Appellant Public Sector Unit did not intimate the Assistant Commissioner about the loss of the documents required for availing the Modvat credit. When there is a procedure prescribed all assessees must follow the procedure. Therefore, there is clearly a lapse on the part of the Appellant Public Sector Unit not following the prescribed procedure. However, after considering the totality of the facts and circumstances, we are of the view that had the procedure been followed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) CCE v. Jyoti Ltd. - 2008 (223) E.L.T. 171 (Guj.) (iv) CCE v. Perfect Synthetics - 2006 (206) E.L.T. 71 (P H) 7. He further argues that even assuming the Guide Car is classifiable under heading 86.03, the same is a part of the Coke Oven Battery and hence the Appellants are eligible for credit in respect of part of the capital goods. 8. S. Shri J.A. Khan, learned SDR supports the impugned order in this regard and states that this is not a case of changing the Classification at the end of the recipients, but the issue of Classification has been finally decided at the supplier's end holding the impugned goods to be falling under heading 86.03. He states that under the applicable rules in force at the relevant time goods fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned Guide Car and hence we uphold the demand of Rs. 45,86,664/- (Rupees Forty Five Lakhs Eighty Six Thousand Six Hundred and Sixty Four only) in this regard. Nevertheless, considering the disputed nature of the issue, we hold that this is not a fit case for imposition of penalty on the Appellants on this count. 11. As such, we partly allow the Appeal setting aside the demand of Rs. 1,24,55,573/- (Rupees One Crore Twenty Four Lakhs Fifty Five Thousand Five Hundred and Seventy Three only) and reduce the penalty to Rs. 1,00,000/- (Rupees One Lakh only) while upholding the demand of Rs. 45,86,6641- (Rupees Forty Five Lakhs Eighty Six Thousand Six Hundred and Sixty Four only). (Pronounced in the open court on 16-10-2008) - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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