2018 (12) TMI 1023

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....agons for the period of May, 2006. 2. The appellant is engaged in the manufacture of sponge iron, ferro silico Manganese & pig iron falling under Chapter 72 of the First schedule in the Central Excise Tariff Act, 1985 in the district Burdwan. They have been availing the benefit of Cenvat credit. It is alleged that the appellant had wrongly availed the Cenvat credit of duty paid on 51 number of box HS wagon classified under Chapter Heading No. 86069290 of Central Excise Tariff Act,1985 and availed Cenvat credit under Cenvat Credit Rules, 2004, amounting to Rs. 88,39,469/- along with education cess of Rs. 1,76,789/- during the aforesaid period. It appeared to the Revenue that the Cenvat credit is not available on the said wagon as capital ....

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....he mistaken notion, they have reversed the Cenvat Credit before issue of show-cause notice and paid applicable interest after the issue of show-cause notice. But these itself will not debar the appellant to contest the issue for the imposition of penalty and on merit as well. Following the ratio laid down in case of Hon'ble Tribunal's decision in the case of Rashtriya Ispat Nigam Limited Vs. CCE - 2003 (161) ELT 285 (Tri.-Bang.), the Tribunal held that penalty is not imposable against under Section 11AC of the Central Excise Act as well as under Rule 173Q of the erstwhile Central Excise Rules, 1944 when the duty has been deposited before the issuance of the show cause notice. The Revenue appeal against the decision of the order before Hon'b....

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.... (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, Used in the factory of the manufacture of final products." From the perusal of the definition of the "capital goods", it is evident that the box HS wagon is classifiable under Chapter Heading 860692.90 which is not excluded from the definition of "capital goods". 8. It is the contention of the appellant that the said credit has been availed by them on the capital goods i.e. box HS wagon, which has been procured and handed over to the railways authority for transport of their input as well as output. It is on record that the appellant is manufacturing goods, which are bein....