Custom, Excise & Service Tax Tribunal
M/S Shorewala Global Industries Pvt. ... vs Cce, Jaipur I on 28 August, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING/DECISION : 28/08/2014. Excise Appeal No. 886 of 2011 (SM) [Arising out of the Order-in-Appeal No. 551(DKV) CE/JPR-I/2010 dated 29/12/2010 passed by The Commissioner of Central Excise (Appeals), Jaipur I.] For Approval and signature : Honble Shri Rakesh Kumar, 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 would 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 : Department Authorities? M/s Shorewala Global Industries Pvt. Ltd. Appellant Versus CCE, Jaipur I Respondent
Appearance Shri Rajesh Sonthalia, Advocate for the appellant.
Shri Yashpal Sharma, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 53448/2014 Dated : 28/08/2014 Per. Rakesh Kumar :-
The appellant are manufacturers of Terry Towel and Terry Towel Fabrics chargeable to Central Excise duty. During 2006 they took Cenvat credit of Rs. 54,004/- on the basis of four invoices, one of which had been issued by M/s Surya Roshni Ltd. for supply of M.S. Tube falling under tariff heading 73063090 and three invoices had been issued by M/s Adventec Polymers P. Ltd. under which HDPE and PVC Pipes falling under heading 39172310 and 39172300 had been supplied. It appears that on the basis of an audit memo mentioning that the appellant have taken Cenvat credit in respect of tube lights supplied by M/s Surya Roshni and such tube lights and PVC Pipes are not capital goods, a show cause notice was issued for recovery of this credit alongwith interest and imposition of penalty. Accordingly, the jurisdictional Deputy Commissioner vide order-in-original dated 17/06/2010 disallowed the credit and confirmed its demand alongwith interest and also imposed penalty of equal amount on them under Section 11AC. The Cenvat credit demand was confirmed on the basis that the goods received from M/s Surya Roshni were tube lights and not M.S. Tubes and that the PVC/HDPE Tubes were not eligible for capital goods Cenvat credit. The above order of the Deputy Commissioner (Appeals) was upheld by the Commissioner (Appeals) vide order-in-appeal dated 11/01/11. Though before the Commissioner (Appeals), the appellant pleaded that the goods received from M/s Surya Roshni were M.S. Pipes and not tube lights and that MS Tubes and PVC/HDPE Tubes have been used in their effluent treatment system, the Commissioner (Appeals) did not accept this plea observing that even if it is accepted that the appellant had received MS Tubes from M/s Surya Roshni, there is no evidence regarding use of these MS tubes and PVC/HDPE tubes by the appellant in their factory. Against this order of the Commissioner (Appeals), this appeal has been filed.
2. Heard both the sides.
3. Shri Rajesh Sonthalia, the learned Counsel for the appellant, pleaded that as is clear from the invoices issued by M/s Surya Roshni Ltd. the goods supplied are MS tubes falling under sub-heading 73063090 of the Tariff, that the goods received from M/s Adventec Polymers P. Ltd. were PVC/HDPE pipes, that both the MS tubes and PVC/HDPE pipes are covered by the term pipes and tubes in the definition of capital goods as given in Rule 2 (a) of Cenvat Credit Rules, that the stand of the Department that the appellant have received tube lights from M/s Surya Roshni Ltd. is totally wrong, that the MS tubes and PVC/ HDPE pipes received by the appellant have been used by the appellant in their effluent treatment plant and that in view of the above, the impugned order is not sustainable.
4. Shri Yashpal Sharma, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals).
5. I have considered the submissions from both the sides and perused the records.
6. The dispute in this case is in respect of Cenvat credit availed by the appellant on the basis of four invoices one of which was issued by M/s Surya Roshni Ltd. regarding supply MS tubes cover by heading 73063090 and the other three invoices issued by M/s Adventec Polymers P. Ltd. regarding supply of HDPE/PVC pipes. According to the appellant these goods are capital goods covered by the term pipes and tubes and have been used by them in effluent treatment plant. However, the stand of the Department is that M/s Surya Roshni manufactures only the tube lights and hence the goods supplied by them under the invoice issued by them have to be tube lights and not MS tubes. With regard to the PVC/HDPE pipes, the Departments stand is that the same are not covered by the term pipes and tubes and hence are not eligible for Cenvat credit. Another plea of the Department is that there is no evidence given by the appellant regarding use of the above-mentioned items. In my view, the terms pipes and tubes covers all pipes and tubes whether of iron and steel or of PVC or HDPE. Therefore, disallowing the credit in respect of PVC/HDPE pipes which according to the appellant were used in effluent treatment plant is totally wrong.
7. As regards the MS tubes received under the invoice of M/s Surya Roshni Ltd., the Departments stand that the goods supplied are tube lights and not MS tube is absurd. If the Department had any doubt the necessary verification could have been done instead of the disallowing the credit. The fact as to whether M/s Surya Roshni Ltd. have a steel division and manufacture steel tubes could be checked from their web-site on the internet. Moreover, when the invoice itself mentions the goods as MS tubes of heading 73063090 and from the value of the goods, the same cannot the tube lights, it is absurd to infer just on the basis of the name of the supplier that the goods supplied were tube lights and that too without making slightest effort to ascertain whether M/s Surya Roshni manufacture only the light fittings or also manufacture steel pipes also.
8. The impugned order disallowing the credit in respect of M/s Surya Roshni Ltd. is, therefore, not sustainable. The same is set aside. The appeal is allowed with consequential relief.
(Dictated and pronounced in open court) (Rakesh Kumar) Member (Technical) PK ??
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