Custom, Excise & Service Tax Tribunal
M/S. Chettinad Cement Corporation Ltd vs The Commissioner Of Gst & Ce, Trichy on 8 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/MISC/41941, 41944/2017 & E/710,711/2010
(Arising out of Order-in-Original No. LTUC/266 &267/2010-C dated 26.08.2010, passed by the Commissioner of Central Excise & Service Tax, LTU, Chennai).
M/s. Chettinad Cement Corporation Ltd. : Appellant
Vs.
The Commissioner of GST & CE, Trichy : Respondent
Appearance Shri R. Parthasarathy, Consultant for the appellant Shri A. Cletus, ADC (AR) for the Respondent.
CORAM:
Honble Ms. Sulekha Beevi, Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing/Decision: 08.01.2018 FINAL ORDER Nos. 40077-40078/2018 Per Bench The brief facts are that the appellants are manufacturers of cement and are registered with the Central Excise Department. They are availing Cenvat credit for inputs, capital goods and input services. The appellants established a new cement plant in Ariyalur and in connection with erection of the plant involving construction of building, installation of plant and fabrication of various support structures and capital goods they had used iron and steel raw materials viz., MS Angles, Channels etc. The appellants had availed credit on MS Angles Channels etc. used. The department was of the view that the appellants are not eligible for credit taken on cement and steel as they do not fall under the definition of inputs or capital goods. A SCN was issued alleging the same which after adjudication culminated in the confirmation of demand, interest and also imposition of penalties. Aggrieved, the appellants are now before the Tribunal.
2. On behalf of the appellants, Ld. Consultant, Shri R. Parthasarathy submitted that in the appellants own case for earlier period, the appeals on similar issue were remanded to the adjudicating authority to pass appropriate order after considering the application of various case laws. That the present case may also be remanded to decide afresh in the light of the judgments rendered on the said issue.
3. The Ld. AR, Shri A. Cletus, ADC, reiterated the findings in the impugned order.
4. Heard both sides.
5.1 The Ld. Counsel for the appellants has relied upon the decision passed by the Tribunal in the appellants own case vide Final Order No. 40948 40953/2016 dated 13.06.2016, wherein the Tribunal has remanded these appeals for reconsideration by following various case laws on the said issue whether credit is admissible on cement and steel used for construction of building/foundation/shed etc. The period involved is prior to 07.07.2009 when the restriction with regard to use of cement and steel as input was introduced for a short duration. We find that the request of the Ld. Consultant can be granted. The appeals are remanded to the adjudicating authority for reconsideration after giving an opportunity of hearing to the appellants and to pass an appropriate order and to consider the applicability of the following case laws as well as other case laws produced by the appellants.
i) CCE, Mysore Vs. ICL Sugars Ltd.
2011 (271) ELT 360 (Kar.)
ii) CCE, Trichy Vs. India Cements Ltd.
2014 (305) ELT 558 (Mad.)
iii) Mundra Ports and Special Economic Zone Ltd. CCE 2015-TIOL-1288-HC-AHM-ST
iv) Saraswati Sugar Mills Vs. CCE, Delhi 2011 (270) ELT 465 (S.C.)
v) Vandana Global Ltd. Vs. CCE, Raipur 2010 (253) ELKT 440 (Tri.-LB)
vi) Jayaswal Neco Ltd. Vs. CE, Raipur 2015 (319) ELT 247 (S.C)
vii) India Cements Ltd. Vs. CESTAT, Chennai 2015 (321) ELT 209 (Mad.)
viii) Empee Sugars and Chemicals Ltd. Vs. CCE, Tirunelveli F.O. No. 41121-40122/2015 dated 06.12.2015
ix) Thiru Arroran Sugars Vs. CCE, Trichy 2015-TIOL-1734-HC-MAD-CX
x) CCE, Trichy Vs. CESTAT, Chennai 2014 (309) ELT 71 (Mad.) 5.2 Ld. Consultant has also requested to waive the penalty. He submitted that the issue whether the assesse is eligible to avail credit on cement and steel was contentious during the relevant period. There were decisions in favour of the appellants as well as revenue. Further, the definition of inputs underwent a change w.e.f. 07.07.2009. Though the Larger Bench decision of the Tribunal held that credit is not admissible on steel items like MS Angles, Channels etc., used for construction of plant/support of capital structures, the said view as held to be per Incuriam by various decisions of the Tribunal. The decision in the case of Rajasthan Spinning and weaving mills - 2010 (255) ELT 481 (SC), had held that the credit is eligible. This was followed by the jurisdictional High Court in the case of India Cements Ltd. (supra). Taking these aspects into consideration, we are of the view that the imposition of penalty is unwarranted and unjustified. We hereby set aside the penalty imposed.
6. In the result, appeals are partly remanded and partly allowed by setting aside the penalty imposed. The miscellaneous applications for change of cause-tile filed by the Revenue are allowed.
(Order pronounced in the open Court)
(MADHU MOHAN DAMODHAR) (SULEKHA BEEVI C.S.)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
BB
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