Custom, Excise & Service Tax Tribunal
Cce, Trichy vs M/S. India Cements Ltd on 15 October, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/CO/59/2004 in E/1071/2003 & E/1084/2003
(Arising out of Order in Appeal No. 425/2003 dated 10.09.2003, passed by the Commissioner of Central Excise (Appeals), Trichy).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
___________________________________________________________
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 the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? ___________________________________________________________
1. CCE, Trichy : Appellant
2. M/s. India Cements Ltd
Vs.
1. M/s. India Cements Ltd. : Respondent
2. CCE, Trichy Appearance Shri T.H. Rao, SDR, for the appellant/respondent Shri M/V. Raman, Adv., for the respondent/appellant CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 15.10.09 Date of decision : 15.10.09 Final ORDER No._____________ Per: Chittaranjan Satapathy, Heard both sides.
2. Appeal No. E/1071/2003 is filed by the department against credit allowed in respect of duty paid on capital goods used in the mines belonging to the respondent assessee. The Ld. Advocate for the respondents brings to our notice, the decision of the Honble Supreme Court in the case of Vikram Cement Vs. CCE, Indore 2006 (197) ELT 145 (S.C.) under which credit of duty paid on the capital goods used in mines has been allowed when such mines are captive mines holding that such mines constitute one integrated unit together with the concerned cement factory. Following the ratio of the cited decision of the Honble Supreme Court in the case of Vikram Cement (supra), we hold that the impugned order passed by the lower appellate authority requires no interference in so far as it relates to allowing credit in respect of duty paid on capital goods used in the mines of the respondents. Consequently, Appeal No. E/1071/2003 filed by the department is dismissed. The cross objection which merely supports the impugned order also stands dismissed.
3. As regards the appeal No. E/1084/2003 is concerned, it has been filed by the appellant assessee in respect of the same impugned order under which cenvat credit has been denied to them in respect of rubber sheets, in respect of certified copies of Bill of Entry and in respect of original invoices.
4. We have heard both sides. As regards the credit relating to the rubber sheets, it is the case of the appellants that these are used along with the machinery to prevent electric shock. The Ld. Advocate prays that the matter in this regard may be remanded so that the appellants will get a second chance to demonstrate before the original authority that the rubber sheets in question are actually accessories to the capital goods and hence eligible to modvat credit.
5. In regard to the credit taken in respect of certified copies of the Bill of Entry, the Ld. Advocate argues that credit is allowable on certified copy of the Bill of Entry as has been held in the following cases.
1. Ingersoll-Rand (India) Pvt. Ltd. Vs. CCE 2001 (138) ELT 1058 (Tri.- Bang.)
2. Biochem Synergy Ltd.Vs. CCE 2002 (148) ELT 399 (Tri.-Del.)
6. As regards credit taken on the original invoices, the Ld. Advocate cites the decision of the Honble High Court of Punjab & Haryana in the case of CCE, Ludhiana Vs. Ralson India Ltd. 2006 (202) ELT 759 (P & H) and states that necessary procedure to claim credit on the basis of original copy of invoices was followed, but the appellants do not have a copy of receipt showing that the application in this regard was received by the department. He, however, pleads that merely on that ground credit cannot be denied.
7. The Ld. SDR, Shri T.H. Rao, appearing for the department states that the appellants are not eligible for capital goods credit on rubber sheets which are classifiable under Chapter 40 and are not capital goods. As regards the credit taken in respect of certified copies of Bill of Entry, he is not in a position to cite any contrary order. In respect of credit taken on the basis of original invoices, he states that the same should not be allowed as the appellants have not followed the procedure prescribed in that regard.
8. After hearing both sides and perusal of case records, we are of the view that since the appellants are claiming that they can demonstrate the rubber sheets to be the accessory of the machinery in question, we allow them a second chance and remand the matter to the original authority for a fresh decision. He shall allow the appellants a reasonable opportunity to demonstrate, in support of their claim, that the rubber sheets are accessories to capital goods.
9. As regards the certified copies of Bill of Entry, following the ratio of the cited decisions in the case of Ingersoll-Rand (supra) Biochem Synergy (supra), we set aside the impugned order and allow the credit in respect of certified copies of Bill of Entry.
10. As regards the credit taken on the original copy of the invoices, apart from the cited decision of the Punjab & Haryana High Court in the case of Ralson India (supra), the appellants have also followed the procedure in this regard. We are of the view that the lapse that they do not have a copy of the acknowledgement of their application for taking credit on the original copies of invoices requires to be condoned. Accordingly, we allow credit in respect of the original copies of invoices by setting aside that part of the order which disallows such credit.
11. Appeal No. E/1071/03, filed by the department is dismissed and the Appeal No. E/1084/03 filed by the respondents is allowed in the above terms.
(Operative part of the Order pronounced in the open Court on 15.10.09)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB
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