2016 (12) TMI 1374

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....The respondent has preferred the said appeal before the tribunal without raising any dispute with regard to the duty liable to be paid and the interest that is also paid thereon. The only dispute which has been raised for the purpose of adjudication was the justification for imposition of penalty in a sum of Rs. 29,58,725/- in terms and in accordance with section 11AC of the Central Excise Act, (hereinafter referred to as 'Act'). The tribunal has recorded its findings on fact that there is no material on record to demonstrate that the appellant deliberately caused prejudice to the revenue and out of a confusion that persisted for a long time that prevented the appellant to settle the duty. In those state of circumstances, the tribun....

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....t; (ii) Pollution control equipment; (iii) Components, spares and accessories of   the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, used; (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office;" 6. From a perusal of the above, it makes clear that such goods which fall under Chapter 82, 84, 85 and 90 and headings No.90, 68.05 etc., answer the description of Capital Goods. Similarly pollution control equipment also answers the description of Capital Goods. But However, the following which is found in the defin....

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....plates and MS angles utilised by it at the first instance for CENVAT credit are only intended to enhance the effective utilisation of the other equipment which is needed to be put in place for their 4th unit of the captive power plant. Such an impression that MS Plates and MS Angles can be used as accessories is not a totally absurd view. 8. When such is the scenario, whether it amounts to a suppression of fact at the first instance is required to be deciphered in view of the language employed in Section 11 AC of the Act, which reads as under; "Section 11AC. Penalty for short-levy or non-levy of duty in certain cases. - Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by ....

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....t to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are again qualified by the immediately following words with intent to evade payment of duty . It is, therefore, not correct to say that there can be a suppression of mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be willful." 11. In view of the settled legal principle, for the penalty to be imposed, the alleged suppression of fact must necessarily be coupled with intent to evade payment of duty. As we have already noticed supra, MS plates and MS angles have been used as accessories of other equipments to make such equi....