2016 (3) TMI 482

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....various steel structural items used for making of transmission tower in the switchyard for power facility in the oxygen plant. The lower authorities have denied the credit by observing that transmission towers, being permanently fixed/ embedded to earth and hence being immovable property, cannot be considered to be goods. For the said proposition, the lower authorities have relied upon the Hon'ble High Court of Mumbai decision in the case of Bharti Airtel Limited vs. CCE, Pune-III  2014 (35) STR 865 (Bom. HC). 2. Learned Advocate appearing for the appellant submits that apart from the said denial, there was denial of cenvat credit of Rs. 6.49 lakhs approximately, which was set-aside by Commissioner (Appeals) by observing that the st....

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....hat the penalty under the said rule and Section is imposable only in case of suppression of facts with intention to evade payment of Central Excise duty. It is on record that the department has detected said availment of cenvat credit during the course of scrutiny of ER.1 return for the month of April 2010 to September 2010 hence the allegation that the appellant has suppressed the fact of such availment is not sustainable. So far as the allegation of intention to evade payment of duty is concerned, I find that it is an admitted fact that the appellant is Government undertaking such thing can never be expected from them.  Out of the said amount of cenvat credit Rs. 9,79,204/- cenvat credit on 92.31 MT of raw steel amounting to Rs. 6,49....

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....ation, there is no justification for imposition of penalty. 10.1 In view of the above I find that imposition of penalty of Rs. 9,79,204/- under Rule 15(2) of Cenvat Credit Rules, read with Section 11AC of the Central Excise Act, 1944 is not sustainable and accordingly I set aside the penalty. Held accordingly. 11. In the result, I partially allow the appeal filed by the appellant to the extent of allowing of the cenvat credit of Rs. 6,49,986/- setting aside the penalty of Rs. 9,79,204/- and for the balance uphold the impugned order". 6. As is seen from the above, the Commissioner (Appeals) has set-aside the penalty on the ground that there was no allegation of suppression against the assessee and there was also no intention to evad....