Custom, Excise & Service Tax Tribunal
M/S. Hira Power And Steels Ltd vs Cce, Raipur on 23 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. IV Excise Appeal No. 3747 of 2012 Excise Stay Application No. 4735 of 2012-SM(Br) [Arising out of Order-In-Original No. 138/RPR-I/2012 dated 6.09.2012 passed by Commissioner Central Excise(Appeals I), Raipur] For approval and signature: Honble Mr. Sahab Singh, Member (Technical) 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? M/s. Hira Power And Steels Ltd. Appellant Vs. CCE, Raipur Respondent
Appearance:
Shri Rupinder Singh, Advocate for the Appellant Shri M.S. Negi, AR for the Respondent Date of Hearing/decision : 23.05.2013 ORDER NO .FO/ 56463 /2013-SM(Br) Per Sahab Singh :
This appeal is filed by M/s. Hira Power & Steels Ltd. (hereinafter referred to as appellant) against order- in-appeal No. 138/RPR-I/2012 dated 6.9.12 passed by Commissioner of Central Excise (Appeals), Raipur.
2. Brief facts of the case are that the appellants are manufacture of ferro alloys falling under Chapter 72 of the Central Excise tariff and they are availing Cenvat credit of duty on inputs and capital goods under Cenvat Credit Rules, 2004. During the course of examination of records for the period August, 2009 to June 2010, it was observed that the appellant had availed the Cenvat credit amounting to Rs. 5,29,671/- on structural items like HR sheets, HR plates, HR strips, MS joists, MS pipes and MS square , channel, beams, flats, plates etc. and conveyor belts as inputs and on copper plates, copper bars, spring, tubes of steel and copper, PM plates wire and cables as capital goods. Since said goods are neither capital goods nor inputs as defined under the Cenvat credit Rules, a show cause notice date 6.9.10 was issued to the appellants which was adjudicated by the Additional Commissioner vide order-in-original No. 118/2011 dated 21.11.2011 in which he has allowed Cenvat credit in respect of pipes and tubes, wire and cables and confirmed the amount of Rs.4,33,335/- and also imposed equal amount of penalty on the appellants. They also preferred an appeal before Commissioner of Central Excise, Raipur who vide impugned order rejected their appeal except allowing the Cenvat credit in respect of wire ropes.
3. The appellant challenged the impugned order in the present appeal along with stay petition.
4. Learned advocate appearing for the appellant submits that Cenvat credit has been disallowed in respect of various items falling under Chapter 72 of Central Excise Tariff on the ground that these items are used as supporting structures in the appellants factory and not covered in the definition of inputs and capital goods. He submits that appellant has submitted a detailed reply showing use of each of the items used in the manufacture of final product and Commissioner (Appeals) has not considered their submissions in this regard. He further submits that for the period July, 2010 to May, 2011, separate proceedings were initiated against them and in that case the Commissioner of Central Excise (Appeals) has accepted their submission and allowed the Cenvat credit in respect of same very goods. He therefore, submits that appellant has strong case for waiver of pre-deposit.
5. Learned DR appearing for the revenue submits that all documents mentioned before the Commissioner (Appeals) were examined by him and he came to conclusion that all items are used as supporting structures in the plant and machinery and there is no nexus between the inputs used in the manufacture of final products. He submits that Commissioner (Appeals) observed that appellant has not produced any evidence in support of their contention that capital goods have been manufactured by the appellant utilizing the disputed items. In such a situation, appellants contention that items in question qualified as inputs is not sustainable.
6. After hearing both sides, I find that the issue relates to the availability of Cenvat credit in respect of items like HR sheets, HR plates, HR strips, MS joists, MS pipes and MS square , channel, beams, flats, plates etc. The appellants contention is that these items are in the nature of inputs and were being used in the manufacture of final products. Revenues contention is that these items are used as supporting structures in the plant and machinery.
7. I find that in respect of same very items Commissioner (Appeals) vide order-in-appeal No. 102/RPR-I/2013 dated 3.4.2013 for the period July, 2010 to May, 2011 has taken a view that Cenvat credit in respect of these items is available to the appellants. I find that Commissioner (Appeals) in this impugned order has observed that appellant has not submitted any documentary evidence to prove their contention that components and spares and accessories of capital goods having been manufactured by the appellant by way of utilizing disputed items. In view of order-in-appeal passed by the Commissioner (Appeals) on 3.4.2013 in respect of same items allowing the Credit, I am of the view that in the present case matter needs to be remanded back to the Commissioner (Appeals) for examining the documentary evidence submitted by the appellants for the purpose of availability of Cenvat credit in respect of each disputed items. I therefore, after allowing the stay petition, remand the case back to the Commissioner of Central Excise for examining all the documents and evidence to be produced by the appellants before him and pass a fresh order after affording opportunity of hearing to appellants
8. Stay petition as well as appeal are disposed of in the above manner.
(Pronounced in the open court)
( Sahab Singh ) Member(Technical)
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