Custom, Excise & Service Tax Tribunal
M/S. Tulsyan Nec Ltd vs Cce, Chennai-Ii on 29 December, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI E/40169 40172/2014 (Arising out of Order-in-Appeal No. 210 213/2013 (M-II) dated 31.10.2013, passed by the Commissioner of Central Excise (Appeals), Chennai). M/s. Tulsyan NEC Ltd. : Appellants Vs. CCE, Chennai-II : Respondent
Appearance Shri P.C. Anand, CA., For the applicant Shri B. Balamurugan, AC (AR) For the respondent CORAM Honble Shri D.N, PANDA, Judicial Member FINAL ORDER No. 41747-41750 / 2015 Date of Hearing/Decision: 29.12.2015 Ld. Counsel says that the goods enumerated in para-7 of the appellate order were used for the manufacture of capital goods finding place in Chapter 84 of CETA, 1975. Those goods were essential goods to give rise to manufacture of capital goods. For no good reason, the adjudicating authority discarded pleas of the appellant on the ground that it took two different stands at two different points of time. While there is no bar in law to de-bar an assessee to raise an appropriate legal plea at any stage of a litigation or proceeding till that reaches finality. Therefore, the reasoning given by the adjudicating authority is not acceptable to law. When the authority discarded the plea of the appellant that the goods in question gave rise to capital goods, it was his duty to examine the entirety of the facts as well as evidences. But that was not done. Similarly, the appellate authority just looking at the photographs of the goods that emerged out of use of the questioned goods brushed aside entire stand of the appellant holding that the goods in question gave rise to supporting structures only for which Cenvat Credit is not admissible. Such view of the adjudicating authority was repelled by the appellant relying on the decision of the Honble Madras High Court in the case of CCE, Salem Vs. Madras Aluminium Co. Ltd. 2015 (316) ELT 59 (Mad.), holding that steel plates and MS angles used in the fabrication of Chimney to fall within the ambit of the capital goods following the Apex Court judgments in the case of CCE, Jaipur Vs. Rajasthan Spinning & Weaving Mills Ltd. 2010 (255) ELT 481 (S.C.) as well as Jawahar Mills case, grants Cenvat Credit to the claimant.
2. Revenue on the other hand says that the appellant used general items to fabricate the supporting structures but not capital goods.
3. To resolve the controversy of both sides as raised above, it is necessary to examine whether the goods in question appearing in para-7 of the appellate order as stated above were as such capital goods or that gives rise to emergence of capital goods. Apart from this, whether the goods in question were used in fabrication of the capital goods appear in the tariff entry as capital goods need to be examined. Examining the definition of input, capital goods in Cenvat Credit Rules, 2004 and following the ratio laid down in the Apex Court judgment, as well as Honble Madras High Court, controversy may be resolved. Therefore, learned adjudicating authority is directed to re-examine the entire issue in the light of the following judgments as well as above judgment of Madras High Court, material facts, evidence and pleading of appellant in the course of denovo proceeding.
(i) Commissioner of CentraL Excise, Jaipur Vs Rajasthan Spinning & Weaving Mills Ltd. reported in 2010 (255) E.L.T. 481 (S.C.).
(ii) Commissioner of Central Excise, Mysore Vs ICL Sugars Ltd. reported in 2011 (271) E.L.T.360 (Kar.).
(iii) Commissioner of Central Excise, Tiruchirapalli Vs India Cements Ltd. reported in 2014 (305) E.L.T.558 (Mad.).
(iv) Mundra Ports and Special Economic Zone Ltd. Vs Commissioner of Central Excise & Customs reported in 2015-TIOL-1288-HC-AHM-ST.
(v) Sarawati Sugar Mills Vs Commissioner of Central Excise, Delhi-III reported in 2011 (270) E.L.T.465 (S.C.).
(vi) Vandana Global Ltd. Vs Commissioner of Central Excise, Raipur reported in 2010 (253) E.L.T. 440 (Tri. - LB).
(vii) Jayaswal Neco Ltd. Vs Commissioner of Central Excise, Raipur reported in 2015 (319) E.L.T. 247 (S.C.).
(viii) India Cements Ltd. Vs CESTAT, Chennai reported in 2015 (321) E.L.T. 209 (Mad.).
(ix) M/s. Empee Sugars and Chemicals Ltd. Vs Commissioner of Central Excise, Tirunelveli vide Final Order No.41121-40122/2015, dated 06.02.2015 in Appeal No. E/41636 & 41637/2014
4. Expecting that ld. adjudicating authority shall reexamine the matter in the light of the above direction granting a fair opportunity of hearing to the appellant all the appeals are remanded to him to dispose the same within a period of three months of receipt of this order.
(Order dictated and pronounced in the open Court) (D.N. PANDA) JUDICIAL MEMBER BB 1