Custom, Excise & Service Tax Tribunal
C.C.E. & S.T. Delhi-Iii vs M/S. Asian Color Coated Ispat Ltd on 30 April, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. II Appeal No. E/52565/2014-EX(SM) [Arising out of Order-in-Original No. 023-SVS-GGN-2014 dated 24.01.2014 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Gurgaon]. For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? C.C.E. & S.T. Delhi-III .Appellants Vs. M/s. Asian Color Coated Ispat Ltd. .Respondent
Appearance:
Ms. Ranajan Jha, DR for the Appellants Shri R.C. Choudhary, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 30.04.2015 FINAL ORDER NO. 51614/2015-EX(SM) Per Ashok Jindal:
The Revenue is in appeal against the impugned order.
2. The facts of the case are that a show cause notice was issued to the respondent who is engaged in manufacturing of HR slitted and pickled, CR coil, CR sheet, CR Strip, GP Sheet & Coil, PPGI coated coil etc.
3. The respondent is taking Cenvat Credit on the inputs / capital goods received by them. A show cause notice was issued to allege that an information was received to the effect that during the course of investigation against M/s. Magadh Precision Equipment Ltd. (MPEL) it was noticed that M/s. MPEL has issued two invoices for Unpolished Granite Blocks showing as Push Pull Pickling Line With Edge Trimmer. On the face of the invoice it was mentioned that goods were brought from M/s. Techno Spark Granite Pvt. Ltd. Bangalore and said goods were directly sent to the respondent. From the scrutiny of the invoice it was found that M/s. Techno Spark Granite Pvt. Ltd. was not a registered dealer as manufacturer or as a dealer and description of goods were given as Unpolished Granite Blocks. But M/s. MPEL raised invoices mentioning the goods as Unpolished Granite Blocks and classified the same under CH 84798999 and charged excise duty on their invoice whereas it was found that the said unpolished granite blocks attracts nil rate of duty and M/s. MPEL is neither a manufacturer. Therefore, the charging of Central Excise duty on M/s. MPEL on the said goods does not appears to be correct. Therefore, M/s. MPEL wrongly charged duty on Unpolished Granite Blocks. Consequently, the M/s. MPEL was not required to pay duty on these goods. In these terms, the respondent was not entitled to take Cenvat Credit on duty paid by M/s. MPEL. Therefore, impugned proceedings were initiated against the respondent to deny Cenvat Credit on duty paid by the respondent. The show cause notice was issued and Cenvat Credit was denied by the adjudicating authority. On appeal the Ld. Commissioner (A) examined the issue and held that as the respondent has paid duty on the impugned goods, therefore, they are entitled to take Cenvat Credit on the said goods. Aggrieved from the said order Revenue is before me.
4. The Ld. AR submits that as this matter relates to the classification of the product. Therefore, same is to be heard by the Division Bench.
5. Considered the objection raised by the Ld. AR and also perused the records.
6. On perusal of the record I find that the short issue before me is to decide whether Cenvat Credit is entitled to the respondent on the strength of the invoices issued by M/s. MPEL in respect of Unpolished Granite Blocks or not. In the show cause notice also there is no issue of classification. Therefore, the understanding of the Ld. AR is misplaced. Accordingly, I hold that the matter can be heard by single member bench.
7. On merits Ld. AR submits that as M/s. MPEL was not required to pay duty on the said goods as they are not the manufacturer of the said goods nor dealer and this Unpolished Granite Blocks attracts nil rate of duty. Accordingly, they are not required to pay duty. Consequently, respondent is not required to take Cenvat Credit thereof.
8. On the other hand Ld. Counsel for the respondent submits that the goods received in their factory were subject to certain process so as to make them suitable for use in the Push Pull Pickling Line With Edge Trimmer more particularly the part of pickling and respondent has explained at the time of recording the statement and how the goods in question were used in the factory in manufacture and also purpose served by the goods and what process was taken by M/s. MPEL in the factory itself who paid duty on the said goods and same has been taken as Cenvat Credit by the respondent. He further submits that in the case of Ranbaxy Labs Ltd. Vs. CCE Chandigarh-2006 (203) ELT 213 (P&H) wherein the Honble High Court has held that assessee has taken the credit on duty which was actually paid. In this case also the respondent has paid the duty on the inputs and taken credit thereof. It is not the concern of the respondent to ascertain whether the supplier of goods was required to pay duty or not. Therefore, Cenvat Credit cannot be denied. Same view was taken by the Honble High Court of Madras in the case of CCE Chennai Vs CEGAT-2006 (202) ELT 753 (Mad).
9. Heard the parties. Considered the submission.
10. In this case it is not rebutted by the Revenue without the evidence that M/s. MPEL has not taken any process in the factory of the respondent. Therefore, M/s. MPEL has made the goods usable to the respondent and on that process of making usable M/s. MPEL has paid duty which is not in dispute. Therefore, as per Rule 3 of the Cenvat Credit Rules 2004 whatever input / capital goods have been received by the respondent in their factory they are entitled to take Cenvat Credit, it is immaterial that whether the impugned goods attract duty or not, when there is no dispute that these goods have suffered duty. The said view has been affirmed by the Honble High Court of P&H in the case of Ranbaxy Labs Ltd. and in the case of CEGAT. Therefore, I hold that respondent has taken Cenvat Credit correctly.
11. In these circumstances, I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.
(Dictated and pronounced in the open court.)
(Ashok Jindal) Member (Judicial)
Bhanu
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E/52565/2014-EX(SM)