TaxTMI 
TaxTMI 
2012 (12) TMI 261
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....onfirmed for Rs. 7,40,935/- along with interest and penalties. The appellants filed appeal with the Commissioner (Appeals) who give relief in respect of credit on many items and restricted the demand to Rs. 1,79,126.38 and reduced the penalty to Rs. 1000/-. Aggrieved by the said order, the Appellants came in appeal before the Tribunal. The Tribunal passed the following order :- "The appellant filed this appeal against order-in-appeal No. 332-C.E./2005 dated 24th June 2005 in so far as denial of cenvat credit on iron and steel structure. The Commissioner (Appeals) observed that the appellant failed to establish that these items were used as parts and accessories of the goods falling under specific heading. The learned Counsel has taken to the bench to the relevant portion of the adjudication order. It is seen from the adjudication order that the adjudicating authority observed that the goods are described as fixture holder, F.W. tank assembly, blow down tank fabricated structure, foundation bolt, perforated ladder, channels, beams, angles, conveyor belting, M.S. Fab cold & hot water tank, M.S. hardware & trough portion etc. The learned Counsel also submits that they have placed t....
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....en to be correct and he submits that in such a case the appellants are eligible for disputed credit. 4. The Counsel disputes the finding of the Commissioner (Appeals) that after 1997 till April 2000 only goods which were covered under headings of Central Excise Tariff specified under Rule 173Q were eligible to Cenvat credit. He relies on clause (ii) in Rule 57Q to the effect that credit was allowable. The said Rule read as under : Rule 57Q, Applicability - (1) The provisions of this section shall apply to goods (hereafter in this section, referred to as the 'final products') described in column (3) of the Table given below and to the goods (hereafter, in this section, referred to as "capital goods"), described in the corresponding entry in column (2) of the said Table, used in the factory of the manufacturer of final products. Sl. No. Description as per Invoice Tariff Heading Nature of use as declared by appellant Whether credit is to be allowed 9-11 Fixture holder 7308.90 Use as Boiler structure. To erect for generation of steam. No 13 Blow down tank 7309.00 Used as Boiler Machinery part. To blow down excess water of boiler. ....
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....at the appellants are eligible for Modvat credit on the disputed items. 6. Further he points out that in the first round of litigation, the Commissioner (Appeals) had upheld a penalty of Rs. 1000/- only. The department did not come in appeal against the said order whereas the appellants had challenged the merits of the claim itself and the matter was remanded back to the adjudicating authority to decide the merits of the claim only and in such a proceeding he should not have increased the penalty from Rs. 1000/- to Rs. 1,79,126.38. He submits that the findings of the adjudicating authority and first appellate authority are not consistent with the provisions under Section 57Q as stood at the relevant time. Therefore, credit should be allowed fully and penalty should be set aside. 7. The departmental officers have not given any findings on the declared use, when case was remanded by Tribunal with specific direction to do so. In the circumstances I made it clear to the Authorised Representative of the Revenue that I propose to accept the declarations given by the appellant to be true and correct and proceed in the matter. 8. Thereupon the Authorised Representat....
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....r each of the disputed items. I take the declarations to be correct for the reasons already recorded and proceed. 11. I give my findings based on information available on record and taking declaration to be correct. This may lead to some inaccuracies but in the facts and circumstances such inaccuracies are inevitable. Such inaccuracies could have been avoided if the lower authorities were willing to inspect the items and record their findings on use each item which was not done. If I remit this matter for de-novo consideration, going by past experience, the authorities below are most likely to keep writing about case laws without verifying actual use and waste the time of the Tribunal again on this matter involving a small amount. So such a course of action is not warranted. The admissibility of the claims are decided having regard to the issue whether the items are used in erecting machinery or are part and accessories of the machinery and the decision in respect of each item as declared by the appellant and indicated in the table below. Sl. No. Description as per Invoice Tariff Heading Nature of use as declared by appellant Whether credit is to be allowed ....