Custom, Excise & Service Tax Tribunal
C.C.E. & S.T. -Raipur vs M/S. Chetan Industries Ltd on 5 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Appeal No. E/58214/2013-EX(SM)
[Arising out of Order-in-Appeal No. 38/RPR-I/2013 dated 14.02.2013 by the Commissioner of Central Excise (Appeals), Raipur].
For approval and signature:
Honble Mr Ashok Jindal, 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?
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?
C.C.E. & S.T. -Raipur .Appellants
Vs.
M/s. Chetan Industries Ltd. .Respondent
Appearance:
Shri G.R. Singh, DR for the Appellants Shri Sudhir Malhotra, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 05.01.2015 FINAL ORDER NO.50025/2015-EX(SM) Per Ashok Jindal:
Revenue is in appeal against the impugned order wherein the Ld. Commissioner has allowed input credit on items like Joist, M.S. Angle, Channel, HSM plates etc. holding that same has been used by the respondent for manufacture of capital goods.
2. The facts of the case are that the respondent is manufacturer of MS Pipes and parts thereof. During the period 2006-07 to 2008-09 (upto November 2008) the respondent availed Cenvat Credit on the items like Joist, M.S. Angle, Channel, HSM plates etc. Revenue is of the view that respondent is not entitled to take Cenvat Credit on these items as same do not qualify as capital goods or part thereof. Therefore, they are not entitled to take Cenvat Credit. A show cause notice was issued to demand duty on these items by denying Cenvat Credit dated 04.01.2011. The show cause notice was adjudicated and the demand of duty along with interest has been confirmed and penalty of equivalent amount under Section 11AC of the Central Excise Act, 1944 was also imposed. The said order was challenged by the respondent before the Ld. Commissioner. The Ld. Commissioner (A) after going through the records placed before him, concluded that these items have been used by the respondent as part of capital goods. Therefore, they are entitled to take Cenvat Credit thereon. The ld. Commissioner (A) also relied on CBEC Circular No.267/11/2010 Central Excise Act New Delhi dated 08.07.2010. Aggrieved from the said order, the revenue is before me.
3. The ld. AR appearing on behalf of the revenue submits that as the items in question are in nature which are to be used for the items which are embedded to earth, therefore same becomes immovable property. In these circumstances, the respondent is not entitled to take Cenvat Credit. Therefore, impugned order is required to be set aside.
4. On the other hand Ld. Counsel for the respondent submits that as discussed by the Ld. Commissioner (A) in his order that all these items have been used by the respondent in manufacturing of the capital goods which in turn is used for manufacturing of final product, therefore they are entitled to take Cenvat Credit on these items. He further submits that as the show cause notice have been issued by invoking extended period of limitation and during the period the issue was in dispute whether on these items Cenvat Credit is available or not. Therefore, the extended period of limitation is also not invokable. In these circumstances, it is prayed that the impugned order is required to be upheld.
5. Heard the parties and considered the submissions.
6. I find that Cenvat Credit is available to the assessee if the item is used in manufacturing of capital goods or used in manufacturing of their final product. In this case Ld. Commissioner examined the issue of usage of items in question and he has observed as under:
The appellant have furnished the drawing & design certified by Chartered Engineer Certificate which was issued showing the quantity of various steel items such as Plate, Angle, Channel, Joists, etc. used for manufacture of parts, components and accessory of capital goods, i.e. Acid Tank, Drier, Zinc Tank, Quenching Tank, Furnace, EOT Crane, Electrical Panel, F.O. Tank, etc. Further, the appellant have submitted photographs of above capital goods items and narrated the same and use of capital goods for manufacture of their final products i.e. HR Strips and galvanized steel tubes. Further, the appellant have manufactured intermediate capital goods i.e. Acid Tank, Drier, Quenching Tank, Furnace, EOT Crane, Electrical Panel, F.O. Tank, etc. wherein they have used the structural steel items for production of their final product i.e. HR Strips & Galvanized steel tubes and capital goods.
7. As the usage has been found by the Ld. Commissioner (A) in the impugned order that these items have been used by the respondent in manufacturing of capital goods. This fact has not been denied by the revenue.
8. Therefore, I do not find any infirmity in the impugned order, the same is upheld. As revenues appeal deserves no merit, therefore, the same is dismissed.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
E/58214/2013-EX(SM)