Custom, Excise & Service Tax Tribunal
M/S Magnum Iron & Steel Pvt. Ltd vs Cce & St, Gwalior on 30 June, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 30/06/2016. DATE OF DECISION : 30/06/2016. Excise Appeal No. 51342 of 2016 (SM) [Arising out of the Order-in-Appeal No. BHO-EXCUS-001-APP-136-15-16 dated 06/01/2016 passed by The Commissioner, Customs, Central Excise & Service Tax, Bhopal.] For Approval and signature : Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? M/s Magnum Iron & Steel Pvt. Ltd. Appellant Versus CCE & ST, Gwalior Respondent
Appearance Shri B.L. Yadav, Consultant for the appellant.
Shri M.R. Sharma, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri B. Ravichandran, Member (Technical) Final Order No. 52281/2016 Dated : 30/06/2016 Per. B. Ravichandran :-
The present appeal is against order dated 06/1/2016 of Commissioner (Appeals), Bhopal. The appellants are engaged in the manufacture of excisable goods like Aluminium Alloy Ingots, Moulds etc. They were availing Cenvat credit on various capital goods, Moulds, Grinding Wheel, Accessories etc. During the period 2001-2002 to 2008-2009 they have availed Cenvat credit on capital goods. These credits were the initial 50% as per Cenvat Credit Rules 2001/2004. Thereafter in August 2011 they have availed the remaining 50% of credit on various capital goods amounting to Rs. 17,82,564/-. This credit of second 50% was objected to by the Revenue on the ground that they have not maintained proper records and not produced relevant documents in support of these credits. The Original Authority ordered the recovery of the said credit and imposed penalty of equivalent amount under Rule 15 of Cenvat Credit Rules, 2004. On appeal, the Commissioner (Appeals) confirmed the original order. Aggrieved, the appellant is in appeal.
2. The learned Consultant submitted that the credit taken on all capital goods is in terms of the applicable Cenvat Credit Rules during the material time and there is no objection from the Department when the first 50% of the credits were availed spread over a period 2001 to 2009. They had maintained all records and there is no allegation regarding diversion of any of the goods on which credits have been availed. Regarding non-availability of original documents, out of 173 invoices 161 invoices were found in original 5 were found to be photocopies and 7 invoices were not submitted. The learned Consultant submitted that the records pertaining to these credits were taken over by officers of DGCEI. The credits were availed based on actual receipt of these goods and duty payment on them has been properly recorded and can easily be verified.
3. The learned AR submitted that the burden of establishing the correctness of credit is on the appellant and in the absence of some of the original documents and in view of belated availment of credit of second 50% the denial of credit was justified.
4. Heard both the sides and examined the appeal records. The admitted facts of the case are that credit on various capital goods, Moulds and Spares availed by the appellant has not been disputed on merit. The first 50% of available credit has been availed and utilized by the appellants without any dispute being raised by the Revenue. It is only in respect of the second 50% availed in August 2011 the Revenue raised objection like non-availability of certain documents and non-maintenance of records. It was admitted in the show cause notice itself out of 173 invoices, 161 invoices were found in original. Out of remaining 12, 5 invoices are available in photocopies. Keeping in view that the credit has not been disputed on merit and also the first 50% of the credit was also not disputed on the ground of improper documents etc., I find no justification to deny the second 50% of credit on the grounds alleged in the proceedings before the lower Authorities. The appellants claim that certain documents were taken over by DGCEI/Income Tax Department. The correctness of the credit availed can be verified with other corroborative evidences. In such situations summary denial of credit of all the second 50% is not justified. It is to be noted that credit on all these items were not disputed when the first half of the credit was taken spread over a period of many years from 2001 to 2009.
5. Considering the above factual position, I find no justification in denying second half of the credit on the reasons stated by the lower Authorities. Accordingly, I set aside the impugned order and allow the appeal.
(Operative part of the order pronounced in the open court.) (B. Ravichandran) Member (Technical) PK ??
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