JUDGMENT By the Court.—We have heard Shri S.K. Bagaria assisted by Shri Sanjay Kumar Singh and Shri Ashish Mishra for the applicants and Shri R.C. Shukla, Standing Counsel, Union of India for the respondents. 2. These three review applications have been filed by M/s. Bajaj Hindusthan Ltd.-the applicant to review the judgment dated 8.3.2013 by which we have dismissed the Central Excise Appeal Nos. 815 of 2012, 816 of 2012 and 817 of 2012 under Section 35G of the Central Excise Act, 1944 arising out of the order dated 6.6.2012 and 29.9.2012 passed by the Customs, Excise and Central Tax Appellate Tribunal, New Delhi in Central Excise Appeal Nos. 3141/2006-EX (DB) and Application No. E/ROM/2981/2012-EX (DB); Central Excise Appeal Nos. 3111/2006-EX (DB) and Application No. E/ROM/2980/2012-EX (DB); and Central Excise Appeal Nos. 3046 /2006 -EX (DB) and Application No. E /ROM/2979 /2012-EX (DB) filed against the order dated 19.5.2006 passed by the Commissioner of Central Excise, Meerut-I, U.P. disallowing the CENVAT Credit. 3. The appellant filed Civil Appeal Nos. 3871-3873 of 2013, Bajaj Hindusthan Ltd. v. Union of India and others, against the judgment. By an order dated 8th May, 2013, Hon’ble Supreme Court dismissed the appeals as withdrawn : “Mr. S.K. Bagaria, learned senior counsel appearing for the appellant, seeks leave to withdraw these appeals so as to approach the High Court for filing Review application as, according to him, certain relevant and important factual aspects, including the documents which are on record of the High Court, had not been considered by the High Court. Permission granted. It is made clear that if the appellant is also aggrieved by the order which might be passed in the Review application, if filed, it will be open to the appellant to challenge the order passed in the Review application as well as the present impugned order, in this Court. The Civil Appeals are, accordingly, dismissed as withdrawn. .................................J. [Anil R. Dave] .................................J. [Madan B. Lokur]” 4. The office has reported the review beyond time by 54 days. In view of the order passed by Hon’ble Supreme Court on 8th May, 2013 the delay in filing the application has not been opposed and is condoned. The office will give regular number to the review applications. 5. .................................J. [Anil R. Dave] .................................J. [Madan B. Lokur]” 4. The office has reported the review beyond time by 54 days. In view of the order passed by Hon’ble Supreme Court on 8th May, 2013 the delay in filing the application has not been opposed and is condoned. The office will give regular number to the review applications. 5. Shri S.K. Bagaria has pressed following grounds to review the judgment : “(D) Because it is further submitted that this Hon’ble Court itself did not even deal with the second issue but dismissed the entire appeal of the petitioner. It is therefore clear that neither CESTAT nor this Hon’ble Court dealt with the second issue at all but by dismissal of appeals the demand in respect of second issue also gets confirmed. Hence there is error apparent on the fact of the record. (E) Because, it is respectfully submitted that while confirming the order of CESTAT, this Hon’ble Court omitted to look into the documents on records clearly establishing the extent or actual quantity of inputs used in the fabrication of capital goods which in turn were used in the manufacture of excisable items. viz how much inputs was purchased under duty paid invoice, how much out of that inputs was used in manufacture of which capital goods, which in turn was actually used in manufacture of excisable goods. The CENVAT credit was taken only in respect of that input which was actually used in the manufacture of capital goods. It is respectfully submitted that this Hon’ble Court by not adverting to the documents on record independently, failed to notice the perversity in the orders of the authorities below and mechanically confirmed the order of the CESTAT, hence there is error apparent on the fact of record. For the sake of convenience, a chart annexed herewith as Annexure R5 prepared on the basis of these documents available on record before the High Court shows that the petitioner has produced documents and clearly established as to how much a particular input was used in the fabrication of a particular capital good which was further used in the factory of manufacturer. A chart annexed as Annexure R6 is submitted before this Hon’ble Court which explains by way of examples the inputs used in the manufacture/fabrication of capital goods clearly shown in the relied upon document (ER-1) by the department (serial No./page No.), the end use details of the same; the documents of which are available on record. (F) Because, it is submitted that perversity in the order of the authorities is reflected by the fact that the petitioner has availed Cenvat credit on a number of inputs namely angles, bars and rods, channels, flats, GP sheet, Joists, Plates, shapes & sections, Parallel Flanges/Beams, Aluminium sheets/coils, Rubber hose pipe & welding electrodes. The authorities did not deal with these inputs individually but disallowed Cenvat credit without even looking at the evidence in respect of each of the inputs. (This table is given at page 232, 236 and 237 of WP). (G) Because the petitioner has vide supplementary-affidavit to this appeal submitted sample documents clearly showing the stepwise process of procurement of inputs against valid invoices, their entries in the store ledger and subsequent issue therefrom vide requisition slips clearly showing end use of the said input in the manufacture/fabrication of the capital goods. For the sake of convenience of this Hon’ble Court the petitioner has prepared a summary chart (Annexure R7) on the basis of documents on record showing that the cenvat credit has been validly taken. (H) Because it is submitted that the perversity in the impugned order is writ large as neither the CESTAT nor this Hon’ble Court dealt with the issue of Cenvat credit on Capital goods and rejected the same without even mentioning the same. This Hon’ble Court noted the submissions of the counsel; for the appellant on the issue but did not deal with that at all. Further, for the sake of convenience of this Hon’ble Court the petitioner has prepared a chart annexed herewith as Annexure R8 on the basis of the documents on records establishing clearly that the Cenvat credit on Capital goods was validly taken. (I) Because, it is submitted that this Hon’ble Court failed to notice the perversity in the findings of the lower authorities in as much as they have held about non supply of details of usage of inputs in fabrication of capital goods particularly in view of the following undisputed positions. (I) Because, it is submitted that this Hon’ble Court failed to notice the perversity in the findings of the lower authorities in as much as they have held about non supply of details of usage of inputs in fabrication of capital goods particularly in view of the following undisputed positions. (J) Because, this Hon’ble Court and the CESTAT did not appreciate that in view of the Explanation 2 to Rule 2 (k), if the inputs have gone into the manufacture of capital goods, then they are eligible for CENVAT credit. Such capital goods must be put to actual manufacture of final product. The petitioner have established clear linkage and have produced the relevant data to show that these inputs were used in the manufacture of capital goods which were in turn used in the manufacture of excisable goods. (K) Because, the High Court did not appreciate that in the absence of any doubt on the genuineness of the aforesaid documents, the findings of the CESTAT/Commissioner that name, description, quantity and usage are not mentioned are contrary to record and ex facie perverse. It is submitted that it is one thing to say that out of the claims made by the appellants, some items did not answer the definition of “capital goods” but it is completely different thing to disallow the whole of the credit as if no capital goods were manufactured at all and as if the factory itself was not established. These findings of the Commissioner Excise and CESTAT are perverse. (L) Because, the High Court/Tribunal/Excise Commissioner did not appreciate the factual position in respect of credit on capital goods. (a) It is submitted that all the items in question were clearly covered by the definition of “capital goods” in Rule 2 (a) (A) (iii) of the CENVAT Credit Rules 2004. These are all components, spares and accessories of capital goods and there was no necessity or requirement of these being covered by any particular heading or subheading. This position was clear from the rule itself. This position was also clarified by CBEC in circular No. 276/110/96-TRU and was specifically taken by the assessee in its reply to the SCN. (b) The goods in question were begasse elevator roller chain, cane carrier, steam boiling set, cane carrier chain etc as per the show-cause notices themselves and there was never any dispute about the nature and description of the goods. (b) The goods in question were begasse elevator roller chain, cane carrier, steam boiling set, cane carrier chain etc as per the show-cause notices themselves and there was never any dispute about the nature and description of the goods. The only ground taken in the show-cause notices was that these goods were not covered by the definition of capital goods and this allegation was ex facie contrary to the definition itself. © It is further submitted that the finding of the Commissioner Excise that the record as per rules were not maintained and no private records also produced, ad the further finding that the details, like name, description, quantity, usage and tariff heading not mentioned, are perverse as the assessee has maintained all records as required by law and the further. (M) Because, the error apparent was reflect by the fact that this Hon’ble Court failed to appreciate that the Commissioner of Central Excise at the time of adjudication of a show-cause Notice build a new case different from what is stated in the Show-cause Notice which is impermissible in law and contrary to the well-settled principle laid down in a catena of judgment of this Hon’ble Court. The Commissioner relied upon for the first time in his order on the provisions of Section 6 of the Central Excise Act, 1944; Rules 9, 10, 11 and 12 of the Central Excise Rules, 2002 and Rule 9 of the CENVAT Credit Rules, 2004 when these provisions were not invoked in SCN and the assessee did not get a chance to deal with them. (N) Because, the High Court/Tribunal ought to have appreciated that these provisions have to be read, with the fact situation in that the capital goods in question were fully exempt from central excise duty under Notification No. 67/95-CE. There is no provision required any other record or formality. High Court/Tribunal did not appreciate that the Commissioner Excise did not consider this Notification and therefore the assessee could not make any submissions thereon because in the SCN, the violation of any other rule was alleged, the assessee did not get opportunity to make submissions thereon in respect of the said Notification. (P) Because, this Hon’ble Court in para 25 of its judgment and CESTAT in para 5 of its judgment, both erred in law in quoting wrong provisions of statute and on that basis deciding the matter. (P) Because, this Hon’ble Court in para 25 of its judgment and CESTAT in para 5 of its judgment, both erred in law in quoting wrong provisions of statute and on that basis deciding the matter. The High Court quoted Explanation 2 to Rule 2 (k) “input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) of Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods”. This was inserted by Notification No. 16/2009-C.E (N.T), dated 7.7.2009. This explanation is not applicable in the present case as the relevant period in all the appeals is 2005-06 when old Explanation 2 to Rule 2 (k) existed and was applicable which was to the effect “Explanation 2-input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer”. Therefore the entire premise of the High Court judgment is wrong. It is submitted that CESTAT has also committed the same mistake. (Q) Because, the HC/Tribunal/Excise authorities ought to have appreciated that there was absolutely no scope of levy of any penalty under Section 11AC read with Rule 15. The SCN itself was based on ER1 submitted by the Appellants alongwith items wise details of Central Credit availed with full disclosure as per the requirement of law. There was no suppression at all and everything was disclosed. The only ground on the basis of which the penal provisions were invoked is that the details were not filed. It is submitted that this ground is absolutely perverse. The documents on record establish that every detail as required by law were provided. Further it is well-settled that even assuming without admitting that on the basis of the records, even if the Commissioner Excise takes a different view about the allow ability of the credit, this cannot be a ground to levy penalty under Section 11AC of the Act. The documents on record establish that every detail as required by law were provided. Further it is well-settled that even assuming without admitting that on the basis of the records, even if the Commissioner Excise takes a different view about the allow ability of the credit, this cannot be a ground to levy penalty under Section 11AC of the Act. Therefore in the facts and circumstances of the case, the ingredients of Section 11AC were not fulfilled, namely no case of fraud, misrepresentation of fact, collusion, any willful mis statement, suppression of act or contravention of the Act or Rules with the intention to evade the tax was made but the Commissioner imposed penalty equal the amount of tax and levied interest also.” 6. We do not find that the judgment suffers from any error apparent on the face of the record. The grounds quoted as above to review the judgment were argued by learned counsel for the appellant and were considered in the judgment dated 8.3.2013, in which we held that the questions raised in the appeals are questions of fact and that there was no substantial question of law to be considered in the appeals. 7. In the judgment dated 8.3.2013 the submissions raised by learned counsel for the appellant were considered on merits. The Court did not agree with him that any substantial question of law arise for consideration in the appeals. The Commissioner, Central Excise, Meerut-1 adjudicating the matter in respect of all the three units disallowed CENVAT credit claimed by the appellants on inputs for manufacture of capital goods and capital goods and also imposed penalty on the amount equal to demand in respect of all the three units under Rule 13 of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The CESTAT dismissed all the appeals on the grounds that no evidence was produced by the appellant with respect to uses of the items for manufacture of the capital goods. The applications filed under Section 35-C (2) of the Central Excise Act, 1944 for rectification of the mistakes were also dismissed. 8. After considering the arguments of Shri S.K. Bagaria the Court found that CESTAT had recorded findings of fact that there was no column in ER-1 nor there was any instruction or circular for maintaining any documents recording details of the inputs for manufacture of capital goods. 8. After considering the arguments of Shri S.K. Bagaria the Court found that CESTAT had recorded findings of fact that there was no column in ER-1 nor there was any instruction or circular for maintaining any documents recording details of the inputs for manufacture of capital goods. 9. It is submitted that the Tribunal’s findings about non-filing of specified details and evidence was perverse. The appellants had brought the goods and items for manufacture of capital goods in the factory and which were further used in the factory for manufacture. There is no finding recorded by the Adjudicating Authority or the Tribunal that the goods brought into the factory were either taken out or used for any other purpose. Explanation-II to Rule 11 (k) of CENVAT Credit Rules, 2004 has been wrongly quoted in paragraph 25. The Court relied on the Rule as amended by notification dated 7.7.2009. The entire documents maintained in proof of the use of the goods and items for manufacture of capital goods were produced in reply to the show-cause notice. Shri Bagaria submits that proof of each of the items brought inside the factory, requisitioned by concerned department, and its use in manufacture was established to claim the CENVAT credit. The Adjudicating Authority did not examine the documents. He states that he had requested the CESTAT and thereafter the High Court to remand the matter to the Adjudicating Authority to examine the documents of requisition from the stores and use of the goods in manufacture of capital goods for the purpose of satisfying himself that these goods and items were actually used in manufacture of capital goods. 10. We did not find any error in the findings recorded by the Adjudicating Authority and the Tribunal that there was no dispute about the facts that in fabrication of capital goods CENVAT credit was taken on M.S Angles, Channels, Plates etc. The appellant, however, neither specifically intimated the department at any point of time nor the details of the items of capital goods fabricated was declared in the returns ER-1 filed by appellants. The appellant, however, neither specifically intimated the department at any point of time nor the details of the items of capital goods fabricated was declared in the returns ER-1 filed by appellants. The drawing and designs of the capital goods claimed to have been fabricated alongwith the plant and the material used was not produced before the Adjudicating Authority, on the basis of which it could be ascertained as to how much quantity of structural steel material was used for various items of capital goods claimed to have been fabricated. The store ledgers and the store issue slips did not establish the use of structural steel items issued. The CESTAT had found that the appellant had neither intimated the department regarding use of structural steel material for fabrication of various items of capital goods, nor the details of the capital goods fabricated could be found in the ER-1 return. The jurisdictional Central Excise Officers thus did not have material before them to verify the claims. 11. The amendment of Explanation-2 of Rule 2 (k) by Notification dated 7.7.2009 is clarificatory in nature as the items specified were always held to be excluded in the manufacture of capital goods. The items specified in the notification dated 7.7.2009 are the items, which are used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. These were never included in the Explanation-2, even prior to its amendment. It included only those goods as inputs, which are further used in manufacture of capital goods. 12. The reliance placed on the judgment in Saraswati Sugar Mills v. Commissioner of Central Excise, Delhi-III, AIR 2011 SC 3286 , is relevant for consideration and in which it was found that the iron and steel structures did not go into the composition of vacuum pans, crystallizers etc. Only those items used for raising structure to support various machines, parts of machineries of plant were found to be covered by Explanation to Rule 57Q as capital goods. Only those items used for raising structure to support various machines, parts of machineries of plant were found to be covered by Explanation to Rule 57Q as capital goods. In para 28 of the judgment it was held that the change after the amendment of Explanation 2 to Rule 2 (k) will not make any difference in the present case as the CESTAT had confirmed the findings on facts recorded by the Commissioner that the appellant could not satisfy the Adjudicating Authority in pursuance to the reply given and the material produced to the show-cause notice, as to whether the goods on which CENVAT credit was taken were actually used in manufacture of capital goods and thereafter went on to observe that the conditions of availing CENVAT credit including the maintenance of documents and accounts and which include invoices used by a manufacturer for clearance of inputs or capital goods from his factory or depot or from the premise of the consignment agent of the said manufacturer or from any other premise from where goods are sold by or on behalf of the said manufacturer, and the inputs or capital goods as such could not be satisfied by producing relevant evidence. 13. So far as question of levy of penalty is concerned, we relied on the judgment of coordinate Bench of the Court in Commissioner of Customs & Central Excise v. M/s. Majestic Auto Limited (Central Excise Appeal No. 142 of 2004 decided on 6.7.2012) in which it was held that the quantum of penalty equal to the duty as contemplated by Section 11AC is mandatory. There is no discretion with the Adjudicating Authority or Tribunal to impose a different amount of penalty. In a case where penalty is leviable under Section 11AC on fulfillment of the conditions, a penalty equal to the amount of duty is leviable. 14. It is submitted by Shri S.K. Bagaria that in the present case there was full disclosure of facts. The show-cause notice itself was based on ER-1 submitted by the appellants alongwith the item wise details of CENVAT credit availed with full disclosure as per the requirement of law. There was no case of fraud, misrepresentation of facts, collusion, and any willful misstatement, suppression of facts or contravention of the Act or Rules with the intention to evade the tax and thus the penalty under Section 11AC could not be imposed. 15. There was no case of fraud, misrepresentation of facts, collusion, and any willful misstatement, suppression of facts or contravention of the Act or Rules with the intention to evade the tax and thus the penalty under Section 11AC could not be imposed. 15. In Para 19.1 of the order of the Commissioner, Central Excise, Meerut-1 giving rise to these proceedings the Commissioner, Central Excise observed that inspite of repeated notices the assessee failed to inform the name, description, tariff heading/sub-heading and usage of the capital goods manufactured from the said inputs and thus suppressed material information from the department. The allegation was clearly established from correspondence between the jurisdictional ranges and the concerned noticee units. The Commissioner further observed that the facts required by the ranges were regarding the capital goods stated to be manufactured as the availment of credit on such inputs depend upon their usage in the manufacture of capital goods. This information was not supplied voluntarily and was also withheld in the enquiry. The information was not furnished even during the course of adjudication proceedings. 16. It is apparent that on these findings recorded by the Commissioner the question of levy of penalty was neither raised nor decided by CESTAT and thus it was found that no substantial question of law arises for consideration. 17. The second issue regarding the denial of CENVAT Credit on the capital goods, which was fully exempt from central excise duty, was neither raised nor decided by the CESTAT. The counsel appearing for the appellants had raised the issue. The question, however, was not considered as it was neither raised nor decided by the CESTAT. In appeal under Section 35G of the Central Excise Act, 1944, the appellant is permitted to raise only such ground, which was raised and decided by the CESTAT. Since the question was neither raised and decided by the CESTAT, it was not considered by the Court while deciding and dismissing the appeals. 18. We do not find that any question of fact or law was either missed out or was not considered to review the judgment. 19. The review applications are accordingly rejected.