Custom, Excise & Service Tax Tribunal
C.C.E., Raipur vs Satya Power & Ispat Pvt. Ltd on 21 December, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT III
Excise Appeal No.E/2235/2010-EX [SM]
[Arising out of Order-in-Appeal No.03 RPR-I/2010 dated 14.01.2010 passed by the Commissioner (Appeals), Raipur]
C.C.E., Raipur Appellant
Vs.
Satya Power & Ispat Pvt. Ltd. Respondent
Excise Appeal No.E/1172/2011-EX [SM] [Arising out of Order-in-Appeal No.07/RPR-I/2011 dated 11.01.2011 passed by the Commissioner (Appeals-I), Central Excise & Customs, Raipur] Sourabh Rolling Mills P. Ltd. Appellant Vs. C.C.E., Raipur Respondent Excise Appeal No.E/2980/2011-EX [SM] [Arising out of Order-in-Appeal No.158/RPR-I/2011 dated 28.09.2011 passed by the Commissioner (Appeals), Central Excise, Raipur] C.C.E., Raipur Appellant Vs. M/s.Uday Sponge & Power Pvt. Ltd. Respondent Present for the Appellant : Mr.R.K. Mishra, D.R. Present for the Respondent: Mr. Bipin Garg, Advocate Ms. Rinki Arora, Adv. & Mr. Manish Saharan, Advocate Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) Date of Hearing/Decision: 21/12/2016 FINAL ORDER NO. _56331-56333/2016_ PER: S.K. MOHANTY Denial of cenvat credit on angles, beams, joist, CTD bars etc. used within the factory for fabrication of various capital goods is the subject matter of dispute involved in all these appeals. Thus, all the appeals are taken up for hearing together and a common order is being passed.
2. The ld. Advocates appearing for the assessees submit that the disputed goods were excluded from the purview of the definition of input vide Notification No.16/2009-CE (NT) dated 07.07.2009 and since the period involved in these cases is prior to the date of such amendment, the embargo created in the explanation appended to definition of input will not have any retrospective application to deny the cenvat credit. To support this stand that amendment in the explanation to the definition of input will be effective prospectively, the ld. Advocates rely on the judgment of Honble Gujarat High Court in the case of Mundra Port Special Economic Zone Ltd. vs. CCE & Cus. reported in 2015 (39) S.T.R. 726 (Guj.) and also the judgment of Honble Madras High Court in the case of India Cement Ltd. vs. CESTAT, Chennai reported in 2015 (321) E.L.T. 209 (Mad.).
3. On the other hand the ld.A.R. appearing for the Revenue support the case in favour of denial of cenvat credit on the disputed services.
4. Heard both sides.
5. It is an admitted fact on record that the assessees had taken cenvat credit on the disputed goods during the period 2004-05 to 2008-09, which was prior to the date of amendment of the definition of input. Since the definition clause of input was amended on 07.07.2009, cenvat credit taken by the assessee prior to such date will not be guided by the embargo created therein. In this context, the Honble Gujarat High Court in the case of Mundra Port Special Economic Zone Ltd. (supra) have held that when the amendment to Explanation 2 of Rule 2 (k) of the Cenvat Credit Rules, 2004 w.e.f. 07.07.2009 was not clarificatory in nature, the same will not have any retrospective application. The relevant paragraphs in the said judgment is extracted herein below:-
8.?Mr. Y.N. Ravani, learned counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited v. Commissioner of Central Excise, Raipur, 2010 (253) E.L.T. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case.
6. In view of above, I do not find any merits in the appeal filed by the Revenue. Therefore, the appeal filed by the assessee is allowed and the appeals filed by the Revenue are dismissed.
[Dictated and pronounced in the Open Court] (S.K. MOHANTY) MEMBER (JUDICIAL) Anita 0 4 E/2235/2010-EX [SM] E/1172/2011-EX [SM] E/2980/2011-EX [SM]