- (1.) This appeal is directed against a judgment and order dated December 30, 2005 by which the learned Tribunal negatived the contention of the appellant that the latter was entitled to Modvat credit. The views expressed by the learned Tribunal as far as relevant for our purpose are as follows: (4) Heard both the sides, I find that the declarations which have been filed by the appellant mentions the tariff description of SOL-90 and SOL-110 as 2710 13 and 2710 11, respectively. The dealer who has supplied the above goods under his invoices has also shown the classification of this product under 2710 13. The invoice does not show that the inputs are benzene and toluene as claimed by the appellant. The invoice shows the description of the goods as SOL-90 or SOL-110 and they have specifically mentioned to avail of under Tariff Item 2710 11 or 2710 13 as the case may be. The goods falling under sub-headings 2710 11 and 2710 13 of the Central Excise Tariff are specifically excluded from the purview of Modvat benefit during the relevant period under Notification No. 5/1994-CE (N.T.) as amended from time to time. I agree with the finding of the Commissioner (Appeals) that the provision is so clear that there was no scope of any misconstruction of the notification and doubt about the Modvat eligibility in respect of the excisable goods in question. Mr. Lahiri, learned senior advocate, appearing in support of the appeal has taken two points: (a) The appellant had really purchased benzene and toluene but the Department has wrongfully disallowed the Modvat credit. He has drawn our attention to page 97, which is a copy of Notification (No. 5/1994) by which various articles, indicated therein, attract the benefit of Modvat credit. From page 102 of the paperbook, it appears that benzene and toluene attract such benefit. Mr. Lahiri contended that the appellant had in fact purchased benzene and toluene and, therefore, the benefit of Modvat credit was attracted. The appellant did not do anything wrong in taking the benefit thereof. (b) The next submission advanced by Mr. Lahiri was that neither the show-cause notice nor the adjudication order indicates as to which clause of rule 173Q of the Central Excise Rules was sought to be pressed into service for the purpose of penalising the appellant. Therefore, the penalty imposed is without the authority of law.
(2.) He in support of his submission drew our attention to a judgment in the case of Amrit Foods v. CCE, 2005 190 ELT 433, wherein there Lordships took the following view (page 438 of 6 RC): The Revenue has preferred an appeal from the order of the Tribunal setting aside the imposition of penalty under rule 173Q of the Central Excise Rules, 1944. The Tribunal has set aside the order of the Commissioner on the ground that neither the show-cause notice nor the order of the Commissioner specified which particular clause of rule 173Q had been allegedly contravened by the appellant. We are of the view that the finding of the Tribunal is correct. Rule 173Q contains six clauses the contents of which are not same. It was, therefore, necessary for the assessee to be put on notice as to the exact nature of contravention for which the assessee was liable under the provisions of rule 173Q. This not having been done the Tribunal's finding cannot be faulted. The appeal is, accordingly, dismissed with no order as to costs.
(3.) We have not been impressed by any of the submissions advanced by Mr. Lahiri. The first submission as regards eligibility of the appellant to claim Modvat credit is without any merit for the simple reason that the appellant itself has declared the goods, in respect whereof the Modvat credit was availed of, as special boiling point spirits belonging to Central Excise Classification Nos. 2710 11 and 2710 13. It would also appear that the appellant himself in his declaration appearing at page 94 of the paperbook did not disclose that it had purchased either benzene or toluene. It has described its goods in the manner indicated above and further identified them by referring to the classification numbers as indicated above.;