Custom, Excise & Service Tax Tribunal
Cce, Raipur vs M/S Rajaram Maize Products on 8 July, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi COURT-III Date of hearing: 8.7.2010 Excise Appeal No. 2607 of 2007-SM, E/CO/309/2008 and E/COD/274/2008-SM [Arising out of Order-in-Appeal No. 85/RPR-II/2007 dated 20.4.2007 passed by the Commissioner (Appeals), Customs & Central Excise, Raipur] For approval and signature: Honble Mr. M. Veeraiyan, 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 should 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 Departmental authorities? CCE, Raipur Appellant Vs. M/s Rajaram Maize Products Respondent
Appearance:
Appeared for the Appellant Shri S.K. Bhaskar, DR
Appeared for the Respondent - Shri A. Jaju, Advocate
Coram: Honble Mr. M. Veeraiyan, Member (Technical)
Order No..dated.
Per M. Veeraiyan:
Appeal No. 2607 of 2007 is by the department against the order of the Commissioner (Appeals) No. 85/RPR-II/2007 dated 20.4.2007. Cross-objection No. 309 of 2008 is connected to this appeal and COD No. 274 of 2008 is application for condonation of delay in filing the cross-objection. Ld. Advocate for the respondent seeks permission to withdraw the cross-objection as well as the application for condonation of delay and permission granted.
2. Heard both sides.
3. The respondent constructed bio-gas plant adjacent to the factory premises. They used M.S. angles, M.S. channels, hooks, HDPE pipe lines, SS pipes etc. and availed Cenvat credit as inputs for the fabrication of the said bio-gas plants. A show cause notice dated 21.8.2006 was issued proposing disallowance of credit amounting to Rs.95,411/- relating to the period up to March 2003. Original authority disallowed the credit of Rs.95,411/- and ordered recovery of the same along with interest. He also imposed penalty of Rs.20,000/- on the assessee. The Commissioner (Appeals) has allowed the appeal of the party both on merits and on limitation.
4. Ld. DR submits that the bio-gas plant was not part of the approved plan of the factory. The use of the impugned items in the fabrication of bio-gas plant was not in the knowledge of the department. He also submits that on merits, the respondents are not eligible for credit in the light of the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd. Vs. CCE Raipur reported in 2010 (253) ELT 440.
5. Ld. Advocate for the respondent submits that the issue relating to eligibility of credit on impugned goods was subject to different interpretations by the Tribunal. Therefore, he submits that there is no suppression of relevant facts and the demand is clearly time-barred.
6. I have carefully gone through the submissions and perused the records.
7. On merits, I hold that the respondents are not eligible for the credit inasmuch as the same have been used in setting up bio-gas plant. Considering the nature of use the impugned items cannot be held as capital goods eligible for Cenvat credit. However, the submissions of the ld. Advocate that the demand is time barred merits acceptance. In this regard, findings of the Commissioner (Appeals) are reproduced :-
It is seen that the demand under the impugned order has been confirmed under the extended period but the lower authority has not at all given any findings as to how the extended period is invokable. Further, the appellants had already declared to the Department the setting up of pollution control equipment vide letter dated 27.5.2002 using various inputs. Thus there cannot be any suppression of facts. Thirdly, all the details have been called out from the balance sheet which being a public document and on that count also there cannot be any suppression of facts. Thus the demand for this reason is as well time-barred.
8. The grounds of appeal do not disclose any material which can upset the said findings of the Commissioner (Appeals) on the time-bar aspect. Further, it is noticed that during relevant period, the issue of admissibility of Cenvat credit on the impugned items was subject to different interpretations and the belief of the respondents that they were eligible for the credit has to be held as bonafide. There is no suppression involved. There is no justification for invocation of extended period of limitation.
9. The appeal of the department is, therefore, rejected. The cross-objection and application for Condonation of Delay are dismissed as withdrawn.
(Dictated & pronounced in open Court) (M. VEERIAYAN) MEMBER (TECHNICAL) RM