Custom, Excise & Service Tax Tribunal
M/S. Diamond Power Infrastructure ... vs Commissioner Of Central Excise & S.T., ... on 30 August, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/13896/2013 (Arising out of OIA No. VAD-EXCUS-002-APP-444/2013-14 dated 15.10.2013 passed by Commissioner (Appeals) Central Excise & Service Tax, Vadodara) M/s. Diamond Power Infrastructure Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Vadodara : Respondent (s)
Represented by :
For Appellant (s) : Shri Willingdon Christian, Advocate For Respondent (s) : Shri Naresh Satwani, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Hon'ble Member (Technical) 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 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 CORAM :
Mr. P.M. Saleem, Hon'ble Member (Technical) Date of Hearing/ Decision : 30.08.2016 ORDER No. A/10800/2016 Dated 30.08.2016 Per : Mr. P.M. Saleem Heard both sides and perused the records.
2. The issue involved in the present appeal is whether the assessee has taken cenvat credit correctly on the disputed goods which are used for repair and maintenance of capital goods. Ld. Counsel for the appellant submits that they are eligible for the credit of the said goods either as components of capital goods which are permitted as per definition of capital goods in Rule 2(a) A (iii) of Cenvat Credit Rules, 2004. Alternatively, CENVAT credit of the said goods are also eligible as Inputs since they have used the same for maintenance of capital goods which are used for manufacture of final products. He also argues that the show cause notice is hit by limitation as the same has been issued on 25.10.2012 for the period covering 2009 to 2011. He contends that they had filed monthly returns alongwith extracts of CENVAT credit register for the relevant months which has been brought to the notice of the adjudicating authority as well as the appellate authority.
3. On the other hand, ld. Authorised Representative for Revenue submits that the CENVAT credit is not eligible on the said goods as they are not covered under the Chapter Nos. specified under Rule 2(a)A (i) to qualify for Capital Goods as per definition of Capital Goods. He further argues that from the records, it is not clear whether the appellants have submitted the detailed annexures alongwith monthly returns as claimed by the ld. Advocate for the appellants.
4. We find that the issue on limitation has to be examined with respect to the details furnished by the appellant alongwith their monthly returns. If they had submitted the details of the goods on which they have taken CENVAT credit, the show cause notice would be hit by limitation. Therefore, we find that the same has to be examined with respect of the monthly returns and annexures filed by the appellant before the department. Both sides agree that the matter has to be remanded to the lower authorities.
5. Hence, the matter is remanded back to the adjudicating authority for the above said purpose. The adjudicating authority is requested to examine the same and decide the issue first on limitation and if required thereafter, on merits. All issues are kept open.
6. Appeal disposed by way of remand.
(Order dictated and pronounced in the open Court) (P.M. Saleem) Member (Technical) ..KL 3