Custom, Excise & Service Tax Tribunal
M/S. Modern India Con-Cast Ltd, vs Coms C Ex - Bolpur on 14 June, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Excise Appeal No.203 of 2012
(Arising out of Order-in-Original No.03/Commr./Bol./12 dated 13.01.2012 passed by
Commissioner of Central Excise, Bolpur)
M/s Modern India Con-Cast Ltd.
Industrial Growth Centre, Dwarila, P.O.-Bishnupur, Dist.-Bankura, West Bengal
Appellant
VERSUS
Commissioner of Central Excise, Bolpur
Nanoor Chandidas Road, SIAN, Bolpur, Dist.-Birbhum, Pin-731204
Respondent
APPERANCE :
None for the Appellant Shri S.Mukhopadhyay, Authorized Representative for the Respondent CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.K.ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO...75747/2023 DATE OF HEARING : 14 .06.2023 DATE OF DECISION : 14 .06.2023 Per Ashok Jindal :
The appellant is in appeal against the impugned order against denial of cenvat credit on Carbon Electrode Paste.
2. The facts of the case are that the appellant is a manufacturer of Ferro Manganese, Ferro Silicon and Ferro Silicon Manganese, availed the cenvat credit on Carbon Electrode Paste. They are neither raw materials in terms of Rule 2 (k) of the Cenvat Credit Rules, 2004 as an electrode to generate electrical spark by passing high voltage current through it and in the process of manufacture, the same get lost. Therefore, the appellant is not liable to take cenvat credit as input. At the most, they could have taken credit as capital goods and 50% of cenvat credit is admissible in the financial year, for which, they are 2 Excise Appeal No.203 of 2012 received as Carbon Electrode Paste and the remaining cenvat credit available in the next financial year . Therefore, the appellant has taken excess cenvat credit. Accordingly, the impugned proceedings were initiated and converted into impugned demands. 2.1 Against the said order, the appellant is before us.
3. Heard the ld.A.R. for the Revenue and perused the records.
4. We find that the issue is no more res integra in the decisions of this Tribunal in the case of Commissioner of Central Excise & Service Tax, Bolpur Vs. M/s Maithon Alloys Ltd. reported as 2016 (11) TMI 1459-CESTAT KOLKATA and in the case of M/s Sova Ispat Alloys (Mega Projects) Ltd. Vs. Commissioner of CGST & Excise, Bolpur reported as 2023 (4) TMI 1130- CESTAT KOLKATA, wherein this Tribunal has held as under :
"6.1 The Tribunal in the case of Commissioner of Central Excise, Bhavnagar Vs. Unifrax India Ltd. reported in 2009 (245) ELT 474 (Tri.- Ahmd.) taking noted of its earlier decision and thereby allowed CENVAT Credit on electrode assembly and needles. It held as:
"2......."In Monnet Ispat Ltd. v. C.C.E., Raipur reported in 2002 (148) E.L.T. 1202 (Tri.-Del) it was held that the consumable items used in the induction furnace for the manufacture of ingots are inputs. Similarly it was held in Punjab General Manufacturing Works v. C.C.E, Kanpur reported in 2002 (147) E.L.T. 331 (Tri.- Del) that crucibles used for molten metals at high temperatures are consumables and have to be treated as inputs. The items used by the appellants are also of the same category and Excise Appeal No.78813/18 4 therefore I do not find any merit in the appeal filed by the Revenue and accordingly reject the same."
(Emphasis Supplied) 3 Excise Appeal No.203 of 2012
7. The Hon'ble Calcutta High Court in the case of Singh Alloys and Steel Ltd. Vs. Asstt. Collector : 1993 (66) ELT 594 (Cal.) had held that the definition of input was not dependent upon what ought to be used but what is in fact used. Relying on this decision the Tribunal in the case of Industrial Chemicals & Monomers Ltd., Vs. CCE, Madurai had held that carbon paste used in the manufacture of calcium carbide either as a technical necessity or otherwise was entitled to benefit of notification 201/79-CE dated 4.6.79, thereby rejecting the plea of mere incidental consumption of carbon paste in the course of manufacture.
8. It is further observed that this very aspect is also covered by the decision of this Tribunal in the case of Commissioner of Central Excise & Service Tax, Bolpur Vs. Maithon Alloys Ltd. vide Final Order No.FO/A/76164/2016 dated 16.11.2016.
9. Applying the ratio of the aforesaid judicial pronouncement to the facts herein, there is no question of denying that electrode carbon paste is in the nature of a consumable as it gets consumed during the process of manufacture of ferro alloys. The electrode carbon paste, therefore, cannot be held to be capital goods in terms of Rule 2 (a) of the Cenvat Credit Rules, 2004.
10. The decision of the Tribunal in the case of Silical Metallurgic Limited Vs. Commissioner of Central Excise, Cochin reported in 2002 (149) ELT 711 (Tri.-Bang.), is on a totally different sphere of consideration and not applicable to the present case at hand. Excise Appeal No.78813/18 5
11. I am of the opinion that electrode carbon paste used and consumed in the process of manufacture of ferro alloys is an input eligible for cenvat credit under Rule 2 (k) of the Cenvat Credit Rules, 2004. I, therefore, find no infirmity in the appellant having availed credit on the said product as input. Accordingly, the demand of interest cannot be sustained".
5. As this Tribunal has already decided the issue that the said Carbon Electrode Paste is in the nature of consumable as it gets 4 Excise Appeal No.203 of 2012 consumed in the manufacturing process and also contained in ferro alloys, therefore, it cannot be said that such goods is a capital goods, in fact, the same are qualified as inputs in terms of Rule 2 (k) of the Cenvat Credit Rules, 2004. We hold that the appellant has taken cenvat credit correctly.
6. Therefore, the impugned order is not sustainable in the eyes of law and the same is set aside.
7. Accordingly, the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in the open court) Sd/-
(Ashok Jindal) Member (Judicial) Sd/-
(K.Anpazhakan)
mm Member (Technical)