2003 (9) TMI 615

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....spondent. [Order (Oral)]. - The issue relates to availment of Modvat credit on capital goods. It was the contention of the party that because of the supplier's mistake of wrong classification, the assessee should not suffer for availing the Modvat credit in respect of capital goods. In this connection, the Counsel appearing for the appellant, drew my attention to the finding portion of the Assi....

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....the explanatory notes of HSN Volume 3 states the 8422.10 is for Dish washing machines for ordinary household uses. Hence, I am of the opinion that the correct classification is and must be 8422.80. The wrong classification on the part of the supplier should not be used to deny the credit duly entitled to the assessees. Hence, I am of the opinion that its hygienical cleanliness has foremost role to....

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.... availing the Modvat credit. But the Assistant Commissioner has clarified under Heading 8422.80 while allowing the credit. Furthermore, the Assistant Commissioner has no power to change the classification. In support of his argument, he referred to the decision of the Tribunal in the case of TELCO v. Commissioner of Central Excise, Jamshedpur reported in 2001 (136) E.L.T. 305. In Para 5.2 of the s....