Custom, Excise & Service Tax Tribunal
Cce, C & St, Visakhapatnam-I vs M/S. Beekay Special Steels on 2 November, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Bench SMB
Court I
Appeal No. E/25585/2013
(Arising out of Order-in-Appeal No. 63/2012 (V-I) CE dt. 20.11.2012 passed by CCE, C & ST (Appeals), Visakhapatnam)
For approval and signature:
Honble Ms. Sulekha Beevi, C.S., 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 Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
CCE, C & ST, Visakhapatnam-i
..Appellant(s)
Vs.
M/s. Beekay Special Steels
..Respondent(s)
Appearance Shri. Nagraj Naik, Deputy Commissioner (AR) for the Appellant.
None for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of hearing: 02/11/2016 Date of decision: 02/11/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The above appeal is filed by the department challenging the Order-in-Appeal passed by the Commissioner(Appeals) who allowed the credit availed on MS Angles, MS Channels etc., under the category of capital goods. The department contends that the Commissioner(Appeals) in the impugned order set aside the demand and also failed to discuss the issue of penalty to be imposed on the irregular credit availed and later reversed by the respondent.
2. Briefs facts of the case are that the appellant had availed credit on MS items like MS angles, Joists, channels. A Show Cause Notice was issued alleging irregular availment of credit. The appellants had taken credit of Rs. 17,05,992/- and they reversed an amount of Rs. 7,02,192/- being the credit availed for sheds and buildings. The respondents had filed an appeal before the Commissioner(Appeals) for the balance amount of Rs. 10,03,080/- with regard to the subject items used for fabrication of capital goods. In the impugned order, the Commissioner(Appeals) held that the demand is unsustainable in respect of MS items used for fabricating EOT Crane, Conveyors, Pre-heating furnce, Cooling Bed and Pipes/Fittings etc., is unsustainable as the appellants have used the subject items for fabricating capital goods/parts/components and for the reason that the respondents had established the use of subject items used by them by furnishing a Chartered Engineers certificate. Thus the demand in respect of an amount of Rs. 10,03,080/- was set aside along with interest. In the impugned order the Commissioner (Appeals) held that the penalty is not imposable.
3. The Department is in appeal challenging the above order passed by Commissioner(Appeals) for the reason that Commissioner (Appeals) ought not to have set aside the entire penalty. The penalty in regard to Rs. 7,02,192/- being the credit which was irregularly availed and reversed by the respondent is to be imposed. The Ld. AR Sh. Nagraj Naik submitted that the appellants having availed irregular credit is liable to pay the penalty.
4. The period involved is April, 2006 to June, 2009. The explanation to the definition of inputs which expressly excluded the use of MS items in laying foundation of sheds came into effect only on 07.07.2009. The date of Show Cause Notice is 07.02.2011 which is issued invoking the extended period. The appellants have submitted the periodical returns and have disclosed the credit availed in statements filed before the department. The issue whether the credit is admissible on MS items used for sheds, buildings etc., was in dispute during the relevant period and was set to rest by amendment w.e.f. 07.07.2009. The period is prior to 07.07.2009 and the appellants cannot be saddled with the intention to evade payment of duty for this period for the credit availed on MS items used construction of sheds etc., Therefore in my view invokocation of extended period is unsustainable and the demand is time barred. No penalty can be imposed. The appeal is dismissed.
(Dictated & pronounced in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Lakshmi.
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