TaxTMI 
TaxTMI 
2013 (10) TMI 261
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....ther unit of theirs on 04/06/2008 without reversing the credit, that this fact was not disclosed to the department until the officers thereof visited the factory and detected the fact on 27/09/2008, that eventually the appellant paid the credit amount of Rs.81,600/- on 24/10/2008, that they also paid interest thereon amounting to Rs.3,953/- in terms of Section 11AB of the Central Excise Act on the same date, that in a statement dt. 17/02/2009, the Managing Partner of the appellant-firm admitted that the machine had been shifted to their second unit for carrying out certain casting on ingots as they did not have sufficient space to install the machine in their unit, that it was also admitted that they had availed CENVAT credit on the machine....
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....at the relevant proposal in the show-cause notice was based on Rule 3(5) of the CENVAT Credit Rules, 2004 and that the provision actually applicable to this case is Rule 4(5)(a). It is submitted that the machine in question was transferred to another unit of the appellant to be used by that unit as job worker for casting certain machines for the appellant. The capital goods so transferred to the other unit was intended to be returned to the appellant after the job work. On these facts, Rule 4(5)(a) was applicable. Had the appellant reversed the CENVAT credit on the capital goods at the time of its transfer to the other unit, they would have been entitled to take recredit of the same amount on receipt of the capital goods back from the job w....
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....ed to the show-cause notice and submits that he clearly admitted that the casting machine (capital goods) had been shifted to the other unit for want of sufficient space in the appellant-unit. The Managing Partner also admitted that the shifting of the machine from the appellant-unit had not been disclosed to the department. He also admitted that the CENVAT credit amount and interest thereon were paid only when pointed out by the officers of the department. In such circumstances, according to the Additional Commissioner(AR), the appellant cannot claim exemption from payment of Section 11AC penalty. An endeavour has also made to distinguish the case law cited by the learned consultant for the appellant. It is also pointed out that there is n....
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.... of the credit amount with interest thereon by the appellant at the instance of the department indicates that the appellant did not have any intent to avail undue benefit. In such circumstances, it is argued that the Section 11AC penalty is liable to be set aside. 5. I have already noted that an amount equal to the CENVAT credit availed and utilized by the assessee was voluntarily paid up by them and also interest thereon was paid under Section 11AB of the Act. No issue survives in regard to the CENVAT credit or interest thereon. The question to be considered is whether, on the facts of this case, the Section 11AC penalty imposed on the assessee is sustainable or not. On this issue, certain decisions have been cited by the learned consul....
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....nt for use in the further manufactured of excisable products. I find that the provisions of Rule 4(5)(a) very clearly envisages eligibility to CENVAT credit on the inputs or capital goods which are sent to a job worker. The only condition in Rule 4(5)(a) is that the said goods has to be received back within 180 days of that being sent to job worker and this condition not complied with, then assessee shall reverse an amount equivalent to the CENVAT credit taken and can take the CENVAT credit when the capital goods are received back in the factory or the job worker's premises. I find that there is no dispute that the said capital goods are utilized by the job worker, it would lend support to the argument that there would be a revenue neutrali....