Custom, Excise & Service Tax Tribunal
Bharathi Cement Corporation Pvt. Ltd vs Commissioner Of Central Excise, ... on 10 September, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21704 / 2014 Application(s) Involved: ST/ROA/20476/2014 in ST/128/2012-DB Appeal(s) Involved: ST/128/2012-DB [Arising out of Order-in-Original No.11/2011 (C. Ex.) dated 13/10/2011 passed by Commissioner of Central Excise, Customs and Service Tax, TIRUPATI.] BHARATHI CEMENT CORPORATION PVT. LTD. No.8-2696, CARMEL POINT ROAD, No.12, BANJARA HILLS, HYDERABAD 500 034 Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax TIRUPATI 9/86-A, BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI - 517502 AP Respondent(s)
Appearance:
Mr. Y. Sreenivasa Reddy, Adv. V.J SANKARAM 7-1-216/4, ADJ: KUSHBOO SILK SHOWROOM, BALKANPET, HYDERABAD.
AP For the Appellant Mr. N. Jagadish, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 10/09/2014 Date of Decision: 10/09/2014 Order Per : B.S.V.MURTHY Vide Misc. Order No.26927/2013 dated 5.9.2013, this Tribunal had directed the appellant to deposit an amount of Rs.1 crore and report compliance on 18.12.2014. The appeal was dismissed for non-compliance with the above order vide Final Order No.27137/2013 dated 18.12.2013. Thereafter the appellants challenged this order and Honble High Court of Andhra Pradesh in their order dated 19.12.2013 in Central Excise Appeal No.54 of 2013 directed this Tribunal to rehear the matter taking into consideration all the points that were raised before them. The order of this Tribunal was set aside. After receiving this order, the appellants filed an application for restoration of appeal which was found to be infructuous since Honble High Court had already set aside the order and directed the Tribunal to rehear the matter. Accordingly, the ROA application was dismissed on 24.2.2014 as infructuous and the matter was listed for hearing stay application.
2. Today, when the matter was called, the learned counsel submitted that in this case the entire demand has arisen as a result of denial of CENVAT credit on MS angles, channels, sheets, etc., on the ground that the same were used for supporting structures and therefore credit is not admissible. Learned counsel submitted that appellant obtained Chartered Engineers certificate and which was submitted before us. In the Chartered Engineers certificate, according to the appellant, entire demand is not sustainable since as much as 2957 MTs was actually capital goods manufactured out of inputs and this benefit has been allowed by the Commissioner in other matter which were remanded for de novo adjudication. He submits that remaining quantity of more than 3321 MTs was used for manufacture of supporting structures for capital goods which were fabricated by the appellants. It is his submission that when capital goods are fabricated by the appellant in their own factory, the decision of the Honble Supreme Court in the case of Saraswati Sugar Mills: 2011 (270) ELT 465 (SC) would not be applicable and the Honble High Court in the case of India Cements Ltd. has taken a view that in such cases, the credit would be admissible. On this basis, he submits that the matter may be remanded for verification of the claims made by them.
3. Learned AR vehemently opposes this claim. He submits that the Chartered Engineer certificate itself shows that at least in respect of about Rs.1.37 crores of CENVAT credit appellant do not have case. It is his submission that the Chartered Engineers certificate which shows that 3321.98 MTs of steel has been used in the manufacture of supporting structures, it does not clearly show that such capital goods have been fabricated by the assessee. This needs further verification.
4. After considering the submissions by both the sides, we find that definitely the matter needs reconsideration and has to go back especially in view of the fact that Commissioner while undertaking de novo adjudication exercise in respect of two demands for the past period has reduced the demand substantially. It was submitted by the learned counsel that Commissioner on verification has accepted their claim that steel items used for fabrication of capital goods, are admissible for CENVAT credit. Further, as regards the 3321.98 MTs, we find that there is no clarity and therefore it may not be appropriate for us to allow the matter to be remanded ignoring the revenue interest totally especially when there is no clarity about the fabrication or otherwise of the capital goods. Under these circumstances, we consider that if the appellant deposits an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs Only) within eight weeks and report compliance to the Commissioner, the learned Commissioner may take up fresh adjudication. We make it clear that we have not expressed any opinion on any of the issues raised before us and the matter will be dealt with by the Commissioner in accordance with law. Needless to say that appellant shall be given reasonable opportunity to present their case before a final order is passed.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3