Custom, Excise & Service Tax Tribunal
Parle Biscuits Pvt Ltd vs Allahabad on 27 June, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT No. I
APPEAL No. E/2674/2012-EX[DB]
(Arising out of Order-in-Original No. MP (Dem.28/2011) 17 of 2012 dated
28/05/2012 passed by Commissioner of Central Excise & Service Tax,
Allahabad)
M/s Parle Biscuits Pvt. Ltd. Appellant
Vs.
Commissioner of Central Excise, Allahabad Respondent
Appearance:
Shri M. H. Patil (Advocate) & Ms. Manasi Patil (Advocate) for Appellant Shri Gyanendra Kumar Tripathi (Asstt. Commr.) AR for Respondent CORAM:
Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Anil G. Shakkarwar, Member (Technical) Date of Hearing : 27/06/2018 Date of Decision : 27/06/2018 FINAL ORDER NO. - 71260/2018 Per: Archana Wadhwa After hearing both the sides duly represented by Shri M. H. Patil Advocate with Ms. Manasi Patil Advocate and Shri Gyanendra Kumar Tripathi (Asstt. Commr.), we find that the dispute in the present appeal relates to Cenvat credit availed by the appellant in respect of various iron & steel items during the period 01/04/2006 to 31/03/2010. We note that the said credit stands 2 APPEAL No. E/2674/2012-EX[DB] denied by the Revenue on the ground that various iron & steel items received by the appellants were used as supporting structural, which have been held to be non- cenvatable by the Larger Bench decision of the Tribunal in the case of Vandana Global - 2010 (253) E.L.T. 440 (Tri.-LB). Accordingly after due adjudication demand to the extent of Rs.1,04,98,954/- crores approximately stands confirmed against the demand along with confirmation of interest and imposition of penalty.
2. Learned advocate submits that the various iron & steel items received by them were used in the fabrication of the capital goods in respect of which even the declaration of law by the Larger Bench itself allows the credit. In any case he submits that the Larger Bench has not been held to be a good law by the Hon'ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. - 2015 (39) S.T.R. 726 (Guj.). He also draws our attention to the Allahabad Tribunal decision in the case of Bajaj Hindustan Ltd. reported as 2018 - TIOL
- 415 (CESTAT-ALL.), wherein the same very items used for fabrication of capital goods as also as structurals were held to be cenvatable. Learned advocate further submits that the period in the appeal is from 01/04/2006 to 31/03/2010 whereas the show cause notice stands 3 APPEAL No. E/2674/2012-EX[DB] issued on 02/05/2011, invoking the longer period of limitation. He submits that each and every item was declared by them by name in their return including the use of the same and as such Revenue cannot allege any suppression or mis-statement, with an intent to evade payment of duty, so as to justifiably invoke longer period of limitation.
3. Learned A.R. appearing for the Revenue reiterated the reasoning of the authorities below.
4. We find that the Lower Authority has primarily relied upon the Larger Bench decision of the Tribunal in the case of Vandana Global referred (Supra). The said decision does not stand approved by Hon'ble Gujarat High Court in the case of Mundra Ports. We also note that in an identical issue, in the case of Bajaj Hindustan, this Bench has decided the issue in favour of the assessee. As such, we find no merits in the Revenue's stands and accordingly set aside the impugned order.
5. Apart from holding in favour of the assessee on merits, we also find the demand to be barred by limitation, inasmuch as in the absence of any positive evidence to reflect upon mala fide of the assessee longer 4 APPEAL No. E/2674/2012-EX[DB] period is not available to the Revenue to raise the demand. Accordingly, we hold that the demand to be barred by limitation also.
6. In view of foregoing discussion, impugned order is set aside and appeal is allowed with consequential relief to the appellant.
(Dictated & Pronounced in Court)
Sd/- Sd/-
(Anil G. Shakkarwar) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Lks