Custom, Excise & Service Tax Tribunal
Cce, Meerut vs M/S. Triveni Engineering And ... on 3 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
E/2839/2011EX[SM]
[Arising out of Order-in-Appeal No. 421/CE/MRT-II/2022 dated 29.07.2011 passed by the Commissioner (Appeals), Central Excise, Meerut-II]
For Approval & Signature :
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter 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?
CCE, Meerut Appellant
Vs.
M/s. Triveni Engineering And Industries Respondent
Present for the Appellant : Shri R.K. Puri, AR Present for the Respondent : None Coram: Honble Mr.R.K. Singh, Technical Member Date of Hearing: 20.08.2014 Date of Pronouncement: 03.11.2014 FINAL ORDER NO. 54200/2014 PER: R.K. Singh Revenue is in appeal in this case against Order-in-Appeal No. 421/CE/MRT-II/2011 dated 29.07.2011 in terms of which Order-in-Original No. 25/ADC/M-II/2011 dated 29.03.2011 was set aside. The said Order-in-Original was in respect of Show Cause Notice dated 22/01/2010 and the demand period covered was financial year 2008-09. The said Order-in-Original had denied Cenvat credit of Rs. 5,70,141/- on MS plates, HR Plates and HR Sheets falling under chapter heading 72 on the ground that the said goods are not inputs as they were not used in or in relation to manufacture of the respondents final products (essentially sugar and molasses) and that the respondents did not produce and evidence that the impugned goods were used for manufacture of capital goods as defined in Rule 2(a) of Cenvat credit Rules.
2. The Respondents claimed that the said goods were used in the fabrication of vessels/pipelines etc. which were in the nature of capital goods essential for the new sugar plant to become functional/operational and thus the impugned goods were not inputs used in or in relation to the manufacture of final products but they were inputs for fabrication of capital goods namely evaporation body and therefore the impugned Cenvat credit was admissible. They also contended that there was no willfull mis-statement or suppression as similar credit had been taken by them even in the past for which no objection was raised. The period involved in this case is prior to 07.07.2009 when Notification No. 16/2009-CE (dated 07.07.2009) amended the definition of inputs in Rule 2(k) of Cenvat credit Rules. Essentially, the ground cited by Revenue is that the respondents did not produce any evidence that the said goods were used in the fabrication capital goods. In this regard, as observed by the Commissioner (Appeals), the appellants have contended that the goods were used in the manufacture of capital goods. It is not the case of Revenue that the capital goods for which the impugned goods were used were not present in the factory nor is the Revenue contending that the impugned goods have been removed from the factory clandestinely.
3. The Show Cause Notice does not bring out as to how the respondents were guilty of suppression of facts. As a matter of fact, the Show Cause Notice merely makes a bland statement that they appear to have suppressed the fact that came to notice of the department at the time of audit. There is not even a scintilla of evidence as to how and on what basis allegation of suppression is made. There is hardly any need to make an idle parade of familiar judicial pronouncements which hold that mere not declaring what is not required to be declared is not suppression. In the case of Gopal Zarda Udyog vs. CCE, Delhi 2005-TIOL-123-SC-CX-LB the Supreme Court observed that mere failure or negligence on the part of the manufacturer does not attract the extended period. In CCE vs. Chemphar Drugs and liniments 2002-TIOL-266-SC-CX Supreme Court held that something positive other than mere inaction or failure on the assessees part or conscious withholding of information when assessee knew otherwise is required for invoking the extended period. In the case of Continental Foundation Joint Venture Vs. CCE Chandigarh-I 2007 (216) ELT 177 (SC) Supreme Court has observed that for invoking the extended period and mandatory penalty the noticee has to be put on notice explicitly so as to enable them to submit their defence. The appellants had been submitting their periodical returns and have been taking the impugned credit and there is nothing which they had not declared to department which was required to be declared under any provision of law. Therefore, the extended period of limitation is not invokable in this case.
3. In view of the foregoing, the Revenues appeal is rejected.
[Pronounced on 03.10.2014] (R.K. SINGH) TECHNICAL MEMBER Neha 1