Customs, Excise and Gold Tribunal - Bangalore
Ultratech Cement Ltd. vs Commissioner Of C. Ex. on 28 February, 2006
ORDER T.K. Jayaraman, Member (T)
1. This ROM has been filed in respect of the Final Order Nos. 1088-1091/2005, dated 5-7-2005 passed by this Bench.
2. Shri G. Venkatesh, the learned Consultant pointed out that firstly, in the said Final Order, the Tribunal has not passed any orders on the request of the appellants to set aside the penalty of Rs. 50,000/- imposed on the appellants under OIA No. 17/2002, dated 04-04-2002 and Rs. 1,000/- under OIA No. 18/2002, dated 04-04-2002 as there was a decision of Tribunal in favour of the appellants on the admissibility of Cenvat Credit on Capital Goods used outside the factory. Secondly, as regards the availment of Modvat credit on Refractory materials, the Tribunal agreed with the contention of the appellant and allowed credit on Calcium Silicate, which is a refractory material taking into account the reliance placed by the appellant on the decision of Karnataka High Court in Escorts Ltf. case, which has been affirmed by the Supreme Court . Since the Tribunal has referred only to Calcium Silicate in blocks and not to other refractory materials, the department is insisting on disallowing the credit on the other refractory materials. Since the tenor of the Final Order can only lead to the conclusion that credit on all materials had been allowed, the learned Consultant requested the Bench to rectify the error apparent on the face of the record.
3. We have gone through the records of the case carefully. The admissibility of Cenvat credit on Capital Goods used outside the Mines was a very contentious issue. Even though, in the said Final Order, the Tribunal decided against the appellants, there was no Order regarding their request for setting aside the penalties. Since the issue is one of interpretation and there is no mala fide, we set aside the penalties imposed in OIA Nos. 17/2002 and 18/2002.
4. As regards the second point, we agrge with the contention of thg appellant that the tenor of the Final Order in para 14 is to allow Cenvat Credit on all Refractory materials. Therefore, in para 14, after the words calcium silicate in blocks, the following words may be added.
and other Refractory materials.
5. Thus the ROM is allowed.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)