Custom, Excise & Service Tax Tribunal
M/S. Hira Industries Ltd vs C.C.E. Raipur on 26 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Application No. E/Cross/86/2011
Appeal No. E/3508/2010-EX(SM)
[Arising out of Order-in-Appeal No. 40/RPR-II/2010 dated 28.07.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, 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?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Hira Industries Ltd. .Applicants
Vs.
C.C.E. Raipur .Respondent
Appearance:
Shri Krishan Mohan Menon, Advocate for the Applicants Shri M.R. Sharma, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing: 26.10.2016 FINAL ORDER NO. 54912/2016-ST(SM) Per Archana Wadhwa:
The appellants are engaged in providing the services of crushing of iron ore lumps in their crusher plate and are registered with the Department of Service Tax under the category of Business Auxiliary Services.
2. The dispute in the present appeal relates to availability of Cenvat Credit of duty paid on various items such as Concave, Mantles, Omni Screen, Tata Hitachi Conveyor Belt and components, spares of Jaw plates, Vibrating Feeder and Weigh Bridge, etc. They were issued a show cause notice on 14.07.2009 seeking to deny the Cenvat Credit of Rs. 11,11,927/- availed by the appellant during the period October 2007 - March 2008. The said proceedings were initiated alleging that they would not be entitled to avail the credit on the said goods either as capital goods or as input material. Though the show cause referred to the definition of capital goods as appearing in Rule 2(a) of Cenvat Credit Rules 2004 which allows the credit in respect of goods falling under Chapter 84, no particular reason or account in the said show cause notice as to why the credit would not be available, stands given in the Show cause notice.
3. The show cause notice culminated into an order passed by the Adjudicating Authority and upheld by Commissioner (A). It is seen that during appeal proceedings appellant produced a Chartered Engineer certificate dated 16.10.2008 certifying that the goods in question were used either as capital goods in their factory or as inputs. The said certificate has been denied by the Commissioner (A) on the sole ground that the goods were purchased during the period 08.01.2005 to 05.09.2007 and as such furnishing of such certificate subsequently has no relevance. I find that the sole question required to be decided in the present appeal is as to whether goods claimed as capital goods are covered by the definition given in Rule 2 (a) of Cenvat Credit Rules or as to whether the goods claimed as inputs stands actually used in the process of crushing of iron ore or so as to earn the Cenvat Credit of duty paid on the same. Neither of the authorities below have examined the said issue vis-`-vis the definition of capital goods or the use of the inputs. Rejection of the Chartered Engineer certificate on the simplicitor ground that the same relates to the purchase of the goods prior to the date of certificate cannot be appreciated. In as much as the certificate reflects upon the use of the goods and is not relatable to the date of purchase of the goods. Such use irrespective of the purchase of the goods is required to be examined by the authorities below. Such examination can be done based upon the Chartered Engineer certificate or the relevant material which the appellant may produce on record.
4. In view of the foregoing discussion, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision in the light of the observations made as above.
5. The ld. Advocate fairly agrees that though the show cause notice stands issued beyond the normal period of limitation but the same was not assailed on limitation before the authorities below. However, he prays for raising the ground of limitation in as much as the same is the legal ground. As the matter is being remanded, the original adjudicating authority would also examine the aspect of limitation. Appeal is thus allowed by way of remand.
[Dictated and Pronounced in the open Court] (Archana Wadhwa) Member (Judicial) Bhanu 3 E/3508/2010-EX(SM)