2006 (8) TMI 72

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....ecovered with consequent penalties under Section 11AC read with Rule 57U(6), confiscation of land building, plant and machinery under Rule 173Q(2)(a) and redemption thereof on a fine of Rs. 4 crores along with interest and individual consolidated penalties under Rules 209A, 210 & 226 have been arrived on employees, of the assessee and under Rules 209A & 210 on the Central Excise Officers appellants herein. 1.2Certain capital goods duty paid, were recovered in the factory premises on eligible documents and installed in the factory as they were to be used in the manufacture of dutiable final products is not in dispute. 1.3The Excise authorities issued a notice dt. 24-3-98 proposing to recover the capital goods credit of Rs. 12,85,33,777....

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....ertificate dt. 11-8-04 and Chartered Engineer Certificate dt. 24-11-04 was submitted by the assessee. Credit of Rs. 12.85 crores was denied along with penalty of equivalent amount and fine of Rs. 4 crores by an order dt. 22-11-05. 2.1The plea of having taken the credit of Rs. 12.85 crores and its non-utilization is not met by the Commissioners and the Chartered Accountants certificate dt. 12-1-2006 to the effect of installation and use and not having utilized the credit which is lying in balance is placed before this Tribunal. This would lead to a conclusion that Commissioners' finding of having "availed the credit of Rs. 12.85 crores" therefore cannot be upheld. 2.2Even if it is accepted that predated/fabricated declaration under Rul....

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....und. Such denial cannot be upheld. 2.3The reliance of the ld. Advocate on the decision of Calcutta High Court in case of H.C.L. Ltd. v. U.O.I. - 1992 (59) E.L.T. 507 (Cal.) paras 18 & 19 of the report is well founded to arrive at a finding that moral conduct and consideration of immorality cannot be relevant to arrive at tax liability and or eligibility to tax concessions, if such concessions are not linked to any such provisions. The provisions of the Central Excise Act, 1944 and the rules under are to levy on tax on manufacture/and collect the same. In garnering of such levies, issues of morality cannot arise. The conduct to evade or avoid may be however liable to a penal consequence, the levy or exemption cannot avoided or denied. The....