Custom, Excise & Service Tax Tribunal
M/S.Petropole India Ltd vs Cce, Jaipur on 18 May, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:18.05.2016
Excise Appeal No.E/1701/2008-EX(DB)
[Arising out of Order-in-Appeal No.109(RKS)/CE/JPR-I/2008 dated 9.5.2008 of the Commissioner of Central Excise (Appeals-I), Jaipur]
For Approval and Signature:
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri B. Ravichandran, Member (Technical)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s.Petropole India Ltd. Appellant
Vs.
CCE, Jaipur Respondent
Appearance: Rep. by Shri R. Santhanam, Advocate for the appellant.
Rep. by Shri M.R. Sharma, DR for the respondent.
Coram : Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. /Dated:18.5.2016 Per Archana Wadhwa:
After hearing both the sides, we find that the appellants have been denied the cenvat credit of duty paid of Rs.2,12,946/- in respect of various iron and steel articles like plates, parallel, flange beams, channels, shapes & sections, angle, bars, etc. on the ground that the same have been used by the appellant for construction of the civil structures. The said demand pertains to the period April, 2005 to October, 2005 and stands raised by way of issuance of show cause notice dated 12.01.2007.
2. The appellant during the course of adjudication as well appellate proceedings before the First Appellate Authority took a categorical stand that the said items were used by them as supporting structurals and the definition of Inputs in the Cenvat Credit Rules, 2004 was amended w.e.f. 7.7.2009 ousting such goods from the eligibility of the cenvat credit. Inasmuch as the period is prior to 7.7.2009, they would be entitled to the benefit of the credit. The appellant also challenged the credit on the point of limitation inasmuch as the credit was availed after reflecting the same in the cenvat credit records and there was no suppression or mis-statement on the part of the assessee, with any malafide intention. They referred to and relied upon the various decisions allowing the cenvat credit in respect of such iron and steel items.
3. However, the above pleas of the appellant was not accepted by the lower authorities, who confirmed the demand along with imposition of penalty of identical amount. Hence, the present appeal.
4. At this stage, after hearing both the sides, we find that the Tribunal in the Larger Bench decision in the case of Vandana Global Ltd. reported in 2010 (253) ELT 440 (Tribunal-LB) laid down that even if the iron and steel articles were used as supporting structurals, they would not be eligible as modvatable items inasmuch as the amendment which came into force on 7.7.2009 was only a clarificatory amendment and as such, is to be held as retrospective. However, we find that the said decision of the Larger Bench of the Tribunal was considered by the Honble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. 2015 (04) LCX0197 and stands virtually over-ruled. Inasmuch as the Honble High Court observed that the amendment issued on 7.7.2009 cannot be held to be clarificatory amendment and as such, would be applicable only retrospectively. As such, without going into the factual aspect as to whether the iron and steel articles were used for construction or as supporting structurals, we are of the view that the same would be entitled to credit inasmuch as the period in the present appeal is before 7.7.2009.
5. Apart from the merits of the case, we find the demand to be barred by limitation. Admittedly, the show cause notice stands issued on 12.01.2007 , for the period April, 2005 to October, 2005. The lower Authorities have invoked the extended period only on the sole ground that the appellant was aware of the fact that the credit is not admissible and still, they took the credit. We find no appreciable reasons for observing so. Admittedly, the credit was being availed after reflecting the inputs in the statutory RG-23-D Part I and Part-II records. The fact of availment of credit was also being reflected in the statutory returns being filed with the Revenue. Non-disclosure of a fact for which there is no column in the records or in the returns, does not ipso facto lead to the conclusion that such non-disclosure is with malafide intention, especially, when there is no legal obligation on the part of the assessee to disclose a particular fact. Apart from that, we find that during the relevant period, there were decisions in favour of the assessee, which came to be reversed only with the declaration of the law by the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd.(supra). As such, it is well settled law that if during the relevant period, the decisions of the higher authorities are in favour of the assessee and the law was reversed only subsequently, by a Larger Bench or by any other decision, no malafide can be attributed to the assessee and longer limitation period would not be available to the Revenue.
6. For the reasons recorded above, we set aside the impugned order and allow the appeal with consequential relief, if any.
[Order dictated & pronounced in open court] ( Archana Wadhwa ) Member (Judicial) ( B. Ravichandran ) Member (Technical) Ckp.
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