Custom, Excise & Service Tax Tribunal
Oswal Woollen Mills Ltd. Unit-Iv vs Cce, Ludhiana on 21 October, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160 017 COURT NO.1 Appeal No. E/2881/2007-(SM) [Arising out of the Order-in-Appeal No.374/NS/GGN/2006 dated 27.12.2006 passed by the CCE (Appeals), Chandigarh) Date of Hearing/Decision: 21.10.2016 For Approval & signature: Honble Mr. Ashok Jindal, Member (Judicial) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes Oswal Woollen Mills Ltd. Unit-IV Appellant Vs. CCE, Ludhiana Respondent
Appearance Sh. Abhinav kansal, Advocate- for the appellant Sh. V. Gupta, AR -for the respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) FINAL ORDER NO.: 61545 / 2016 Per Ashok Jindal:
The appellant is in appeal against the impugned order denying the cenvat credit on capital goods availed by the appellant during the period March, 2005 to September, 2005.
2. The facts of the case are that the appellant is engaged in the manufacture of textile goods and were availing the benefit of Notification No. 29/2004-CE and Notification No. 30/2004-CE whereas clearing the goods under Notification No. 29/2004 at concessional rate of duty subject to availment of cenvat credit and under notification 30/2004 without availing cenvat credit on inputs and clearing the goods without payment of duty. During the period March, 2005 to September, 2005, the appellant procured certain capital goods/parts thereof and availed the cenvat credit. The case of the Revenue is that as during the said period, the appellant has not made any clearance by availing benefit of Notification No. 29/04, therefore, the appellant is not entitled to avail cenvat credit on capital goods or parts. In these set of facts, a show cause notice was issued to the appellant to deny the cenvat credit. Consequently, to demand of the duty along with interest and to impose penalty on the appellant. The matter was adjudicated, the demand of duty was confirmed along with interest and penalty was also imposed on the appellant. Aggrieved from the said order, the appellant is before me.
3. The Ld. Counsel for the appellant submits in their own case for different period reported in 2012 (284) ELT 240 (Tri. Del) the cenvat credit has allowed to the appellant, therefore, the impugned is to be set aside.
4. On the other hand, the Ld. AR opposed the contention of the ld. Counsel and submits that as the said notification came into force on 09/07/2004, but 10/07/2004, the appellant themselves have reversed cenvat credit contain in inputs, work in progress and availed benefit of notification no. 30/2004. Admittedly, during the impugned period, the appellant has not made any clearance by availing the benefit of notification 29/2004. Therefore, the appellant is not entitled to take cenvat credit on capital goods/parts and in the light of the decision of this Tribunal in the case of Surya Roshni Ltd. reported in 2003 (155) ELT 481 (Tri. Del.) Which has been affirmed by the Honble Apex Court reported in 2003 (158) ELT A273 (SC).
5. Heard both the sides and considered the submissions.
6. On careful consideration of the submissions made by both the sides, I find that the appellant has availed cenvat credit on capital goods/parts, during the period March, 2005 to September, 2005 and not effected any clearance by availing benefit of notification 29/2004. In October, 2005 the capital goods has been used in manufacturing of goods cleared under notification 29/2004. The decision of this Tribunal in the case of Surya Roshini Ltd. (Supra) is not applicable to the facts of this case. As in the said case, at the time of procurement of capital goods, the assessee did not manufacture the any dutiable goods, they have started availing exemption w.e.f 10.07.2004 of the notification no. 30/2004-CE. I find that in the appellants own case the issue has decided in favour of the appellant.
7. As the appellant is availing benefit of notification 29/2004 as well as notification 30/2004. In that circumstance, I hold that the appellant has correctly availed the cenvat credit on capital goods/parts, during the impugned period.
With these observations, the impugned order deserves no merits, hence set aside. Consequently, the appeal is allowed with consequential relief, if any.
(Dictated & Pronounced in the open court) Ashok Jindal Member (Judicial) rt 1 E/2881/2007 Oswal Woolen Mills ltd., Unit IV Vs. CCE, Ludhiana