Custom, Excise & Service Tax Tribunal
M/S. Itc Ltd vs Cce, Hyderabad on 27 November, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - SMB
Court I
Date of Hearing:27/11/2012
Date of decision:27/11/2012
Appeal No.E/646/2011
(Arising out of Order-in-Appeal No.57/2010(H-I)(CE) dt. 30/08/2010 passed by CC,CE&ST(Appeals-I), Hyderabad)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. ITC Ltd.
..Appellant(s)
Vs.
CCE, Hyderabad
..Respondent(s)
Appearance Mr. Raghavendra B, Advocate for the appellant.
Mr. N. Jagdish, Superintendent(AR) for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) FINAL ORDER No._______________________ On a perusal of the records and hearing both sides, I find that the appellant on 30/03/2009 took CENVAT credit of the duty paid on MS plates and angles which were received in their factory on 20/11/2007. The credit amounts to Rs.87,369/-. In a show-cause notice dt. 28/05/2009, the Department proposed to recover the said amount on the ground that the appellant failed to prove that the above goods were used as components/spares/accessories of any goods specified under Rule 2(a)(A) of the CENVAT Credit Rules 2004 (CCR 2004, for short). The show-cause notice also sought to levy interest on the said amount apart from proposing a penalty on the party under Rule 15 of the CCR 2004. These proposals were contested by the party. In adjudication of the dispute, the original authority confirmed the demand with interest thereon against the assessee and imposed on them a penalty of Rs.5000/-. An appeal filed by the assessee against the Order-in-Original came to be rejected by the Commissioner(Appeals). Hence the present appeal of the assessee.
2. It is submitted by the learned counsel for the appellant that the MS plates and angles were used to fabricate cable trays/electrical trenches which, in turn, were used for power distribution within the factory. In this connection, he relies on a certificate of a Chartered Engineer as also on certain drawings produced by the appellant. The counsel also refers to the relevant invoices wherein handwritten remarks to the effect that the entire materials shall be used for electrical panels, cable tray etc. are found. On this basis, it is argued that the plates and angles were used as components/parts of capital goods falling under Rule 2(a)(A) ibid and, therefore, CENVAT credit cannot be denied to the appellant.
3. Per contra, the learned Superintendent(AR) submits that the claim of the appellant was not proved before the adjudicating authority or the first appellate authority. He submits that, before the Tribunal also, there is no evidence of the plates and angles having been actually used in the manufacture of capital goods falling under Rule 2(a)(A) ibid.
4. After considering the submissions, I am not impressed with the submissions made by the learned counsel. It is not in dispute that the plates and angles were received in the appellants factory in November 2007 and CENVAT credit thereon was taken in March 2009. In the absence of period of limitation, this aspect is not in the centre of the present controversy. The present dispute is as to the manner of use of the plates and angles. The claim of the appellant is that they were used to make cable trays/electrical trenches which are claimed to be capital goods falling under Rule 2(a)(A) of the CCR 2004. Neither the drawings nor the Chartered Engineers certificate can be accepted as a substitute for evidence of the manner of actual use of the materials. The drawings are not dated, while the Chartered Engineers certificate was issued on 04/10/2010. Neither of these documents can be said to have proved the manner of use of the plates and angles. Therefore, I am unable to interfere with the view taken by the lower authorities which is to the effect that the assessee failed to prove that the plates and angles were used as components/spares/accessories of capital goods classifiable under Rule 2(a)(A) of the CCR 2004.
5. The appeal is dismissed.
(Pronounced and dictated in open court) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4