COMMR TIRUCHIRAPALLI Vs. KOTHARI SUGARS & CHEMICALS LTD

JUDGEMENT

(1.) The department on appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal, dated 27-6-2007 made in Nos. 787 & 788/2007.

(2.) The facts of the case as culled out of the statement of facts, stated in the memorandum of grounds are under :-

(3.) As against the non-imposition of penalty, the department filed application with the Commissioner of Appeals and the Commissioner of Appeals imposed penalty. The assessee's appeals against the denial of capital goods credit were dismissed by the Commissioner. The assesses filed appeals to the Tribunal, one against denial of capital goods credit and the other against imposition of penalty. The Tribunal, has found that the denial of credit by the department was only on the ground that the portion of electricity generated at the co-generation plant was released out of the factory for supply to the Tamilnadu Electricity Board, but not on the ground that the capital goods on which credit has been taken has not been used in the power generation plant. The assessee's own case of similar claim has been considered by the Tribunal and the relief was granted. On that basis the Tribunal allowed the appeal of the assessee, against order of denial of capital goods credit and consequently allowed the appeal of the assessee filed against the imposition of penalty. As against the said order, the Department filed the present appeals by formulating the following question of law: