Per Gowri Shankar :

After waiving deposit of the penalty, we take up the appeal with the consent of both sides.

2. Penalty has been imposed on the appellant for the reason that it changed the classification, from heading 84.24 already approved, of the shot blasting machine manufactured by appellant under heading 84.60. The Asst. Commissioner whose order has been confirmed by the Commissioner (Appeals) has imposed penalty on his finding that the attempt to change the classification of the machine was made so that its purchaser could avail of the modvat credit of the duty paid on them. Credit is available of the duty paid on goods classifiable under heading 84.60 but not those classified under 84.24.

3. The advocate for the appellant does not wish to press the claim for classification under 84.60, which is made in the appeal, but disputes the penalty. He says there is no provision in the act or rules for seeking to change the classification. The departmental representative emphasizes that there is no change in the machine, and the only object of the change appears to have been to enable modvat credit to be taken, which was otherwise not permissible.

4. We agree that the circumstance