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of <h1>Tribunal's classification of Loadall under Heading 84.29 upheld; reclassification to Heading 84.27 rejected, penalty deleted</h1> <h3>SARVESH REFRACTORIES (P) LTD. Versus COMMISSIONER OF C. EX. & CUSTOMS</h3> SC upheld the Tribunal's finding that the Loadall's classification as declared by the manufacturer under Heading 84.29 could not be reclassified to ... Disallowance of Cenvat/Modvat credit under Rule 57Q - definition of 'capital goods' - Classification of 'Loadall' - Heading 84.27 Or 84.29 - HELD THAT:- The finding recorded by the Tribunal is unexceptionable. We agree with the view taken by the Tribunal that the appellant could not get the classification of 'Loadall' changed to Heading 84.27 from 84.29, as declared by the manufacturer. Insofar as the penalty imposed by the authority-in-original is concerned, we are of the view that a case for imposition of penalty is not made out and accordingly the same is set aside and deleted. Rest of the order of the Tribunal restoring the order of the authority-in-original is confirmed. Under the circumstances, we do not permit the appellant to raise this alternate submission. The appeal is disposed of accordingly with no order as to costs. Issues:1. Disallowance of Modvat credit under Rule 57Q of the Central Excise Rules, 1944.2. Classification of the item 'Loadall' under Heading 84.29 or 84.27.3. Imposition of penalty under Rule 173Q(bb) of the Rules.4. Appeal against the Tribunal's decision and imposition of penalty.Analysis:Issue 1: Disallowance of Modvat credit under Rule 57QThe appellant purchased 'Loadall' with excise duty included and claimed Modvat credit under Rule 57Q. The Dy. Commissioner disallowed the credit, stating that Heading 84.29 was excluded from the definition of 'capital goods.' However, the Commissioner (Appeals) found 'Loadall' to be an improved material handling equipment falling under Heading 84.27, making the appellant eligible for the credit. The Tribunal overturned this decision, upholding the original disallowance based on the manufacturer's classification under Heading 84.29.Issue 2: Classification of 'Loadall'The Tribunal held that the appellant could not change the manufacturer's classification of 'Loadall' from Heading 84.29 to 84.27. This decision was supported by the Supreme Court, agreeing that the classification declared by the manufacturer should stand. The Court found the Tribunal's decision on this matter to be correct and upheld it.Issue 3: Imposition of PenaltyThe Dy. Commissioner imposed a penalty of Rs. 50,000 under Rule 173Q(bb) of the Rules. However, the Supreme Court found that there was no case for the imposition of the penalty and set it aside. The Court confirmed the rest of the Tribunal's order, including the restoration of the original decision disallowing the Modvat credit.Issue 4: Appeal Against Tribunal's DecisionThe appellant attempted to raise an alternate argument regarding the interpretation of Rule 57Q, which had not been previously presented. The Supreme Court did not allow this new submission. Ultimately, the appeal was disposed of with no costs awarded, confirming the Tribunal's decision on the classification of 'Loadall' and the disallowance of the Modvat credit, while setting aside the penalty imposed by the Dy. Commissioner.
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