Custom, Excise & Service Tax Tribunal
M/S.Hindustan Zinc Ltd vs Cc, Jaipur-Iii on 15 November, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
Single Member Bench
Excise Appeal No.2370 of 2008
(Arising out of Order-in-Appeal No.125(DK)C/JPR-II/2008 dated 25.8.2008 passed by the CCE(A), Jaipur-II)
Date of Hearing/Decision: 15.11.2010
For approval and signature:
Honble Mr.M.Veeraiyan 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.Hindustan Zinc Ltd. Appellant
Vs.
CC, Jaipur-III Respondent
Present for the Appellant : Shri Hemant Bajaj, Advocate
Present for the Respondent: Shri K.P.Singh, DR
Coram:
Honble Mr.M.Veeraiyan, Member (Technical)
ORDER No.____________/
PER: M.VEERAIYAN
This is an appeal against the order-in-appeal No.125(DK)CE/JPR-II/2008 dated 25.8.2008 of the Commissioner (Appeals).
2. Heard both sides.
3. The relevant facts of the case, in brief, are that the appellants availed credit of excise duty paid on wire rope/steel wire rope treating them as capital goods. A show cause notice dated 1.2.2007 was issued to the appellants alleging that the said wire ropes could not be treated as capital goods and, therefore, proposing denial of credit. The show cause notice related to other items as well which are not relevant to the present proceedings. Before the original authority, the appellants contested the proposal of the department and also made alternative submission if the wire ropes could not be considered as capital goods, then they should be treated as inputs. The original authority held that the wire rope/steel wire rope could not be treated either as capital goods or as inputs. The appellants filed appeal before the Commissioner (Appeals) in which also, they claimed that the said wire rope/steel wire rope should be treated as capital goods or alternatively as inputs. The Commissioner (Appeals) held that the said items could not be treated as capital goods and upheld the order of the original authority.
4. Learned Advocate for the applicants submits that the Tribunal in their own case relating to the earlier period, following the decision of the Tribunal in the case of K.C.P. vs. CCE, Guntur reported in 2005 (183) ELT 403 (Tri.-Bang.) allowed the credit on these items.
5. Leaned SDR submits that the impugned items are classified under chapter 73 by the supplier and therefore the same cannot be considered as capital goods in terms of definition of the capital goods which restricts the same to goods falling under specified tariff headings only. He also submits that these items cannot be treated as inputs in relation to the final products manufactured by them which are lead, zinc and metal concentrates. He also submits that the decision of the Tribunal in the case of Hindustan Zinc Limited vs. CCE, Jaipur-II reported in 2008(227) ELT 309 was rendered merely relying on the decision in the case of K.C.P. Limited and the decision in the case of K.C.P. Limited do not contain any discussion on the merits of the case and therefore cannot be taken as binding precedent. He also submits that there is no claim by the appellants that these items are used in the factory of production. If it was used in the mine there is no finding to the effect that such items have been used in their captive mine.
6. I have carefully considered the submissions from both sides. The appellants availed credit treating the wire ropes as capital goods. The show cause notice proposing the denial of credit held that the same are not the capital goods. The appellants have raised an alternative plea before the original authority that in the event the impugned goods being not treated as capital goods, they should be treated as inputs. While the original authority has held that impugned items are neither to be treated as capital goods nor as inputs, both sides agree that the order of the Commissioner (Appeals) is silent on the alternative claim of the appellants that impugned goods should be treated as inputs. Neither side is in position to give details as to whether the decision of the Tribunal dated 9.1.2008 in so far as the same related to wire ropes has been challenged by the department and if so, what is the present position.
7. In view of the above, I deem it proper to set aside the order of the Commissioner (Appeals) in respect of the impugned items and remand the matter to the Commissioner (Appeals) with the direction to consider the issue afresh and record his finding on the alternative plea also. All issues relating to the impugned items are kept open.
8. The appeal is allowed by way of remand.
(Dictated and Pronounced in the open court)
(M.VEERAIYAN)
MEMBER (TECHNICAL)
mk
.
1
4