Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nagpur vs M/S. Lloyds Metals & Engg. Ltd on 9 May, 2014
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/474/08-Mum
(Arising out Order-in-Appeal No. AKD/36/NGP/2008 dated 13.03.2008 passed by the Commissioner of Central Excise (Appeals), Nagpur)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise, Nagpur
Appellant
Vs.
M/s. Lloyds Metals & Engg. Ltd.
Respondent
Appearance:
Shri V.C. Khole, JC (AR) for the appellant Shri Vipin Kumar Jain, Advocate for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 09/05/2014 Date of decision : 09/05/2014 O R D E R No:..
The Revenue is in appeal against the impugned order wherein the Commissioner (Appeals) allowed Cenvat credit availed by the respondent on MS Bar, CTD bars, beams etc. which was used by the respondent for setting up the klin cooler and chimney in their factory
2. The brief facts of the case are that the respondent availed Cenvat credit during the period April-July 2006 on the above items which were used for the above purpose. Revenue is of the view that these items does not cover under Rule 2(k) of the CENVAT Credit Rules, 2004, therefore, the respondents are not entitled for input credit, therefore the show-cause notice was issued, the matter was adjudicated, and demand was confirmed by the Adjudicating Authority along with interest and equivalent amount of penalty. On appeal before the Commissioner (Appeals), the ld. Commissioner (Appeals) relied upon the decision in respondents own case by the Hon'ble High Court of Bombay, set aside the order of adjudication. Aggrieved from the said order, the revenue is before me.
3. Ld. AR on behalf of the revenue submits that as the items like MS bars, CTD bars, beams which have been used for setting up the klin, cooler and chimney, which are attached to the earth. Therefore, they are not entitled to take Cenvat Credit on the above items as per the decision of the Larger bench of the Tribunal in Vandana Global Ltd. 2010 (253) ELT 440(Tri-LB).
4. On the other hand, Ld. Counsel on behalf of the respondent submits that during the impugned period the definition as per Rule 2(k) of CENVAT Credit Rules, 2004 includes the above items for availment of Cenvat Credit. He further submits that after considering the issue in case of Vandana Global Ltd. (supra) by the Larger Bench of the Tribunal, this issue came up before the Honble Apex Court in the case of Rajasthan Spinning & Weaving Mills Ltd. 2010 (255) ELT 481 (SC) wherein the Honble Apex Court held that the assessee is entitled to take Cenvat credit on the above said items which have been used for setting up the capital goods. Thereafter, this Tribunal in the case of Jindal Steel & Power Ltd. 2011 (263) ELT 557 (Tri-Del) after considering the decision of Vandana Global Ltd. (supra) and Rajasthan Spinning & Weaving Mills Ltd. (supra) arrived at a decision that the assessee is entitled to take Cenvat credit on the above said items, which have been used for setting up capital goods. In these terms, the impugned order is to be upheld.
5. Heard both sides. Considered the submissions.
6. There is no doubt that the larger bench of the Tribunal has held that the explanation amended in 2009 of Rule 2(k) of CENVAT Credit Rules, 2004, is clarificatory. Despite that, the Honble Apex Court in Rajasthan Spinning & Weaving Mills Ltd. (supra) held that Cenvat credit on the above said items is available if same has been used for setting up capital goods. The decision of the Honble Apex Court will prevail over the decision of the Larger Bench of the Tribunal. Therefore, following the decision of the Rajasthan Spinning & Weaving Mills Ltd.(supra), I hold that the respondent are entitled for Cenvat Credit on the items IN dispute during the impugned period, which has been used for setting up capital goods, i.e. klin, cooler and chimney.
7. With these terms, I do not find any infirmity in the impugned order, same is upheld. Appeal of the revenue is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) //SR 4