Customs, Excise and Gold Tribunal - Bangalore
Associated Cement Companies Ltd. vs The Commissioner Of Central Excise on 18 April, 2007
Equivalent citations: 2007(120)ECC401, 2007ECR401(TRI.-BANGALORE)
ORDER T.K. Jayaraman, Member (T)
1. This appeal has been filed against Order-in-Appeal No. 64/2005 dated 7.3.2005 passed by the Commissioner of Central Excise (A), Mangalore.
2. The appellants availed cenvat credit on capital goods like structural items to the extent of Rs. 41,77,374/-. At the department's insistence they reversed the credit taken under protest. Revenue issued a show cause notice for vacating the payment under protest. The lower authority vacated the protest. The appellants appealed to the Commissioner (A) who passed the impugned order rejecting the appellant's appeal. He has made the following observation "protest can be alive only if their exists a bonafide dispute and the process leading to its resolution. Department has the right to vacate such protest where no dispute exists". The appellants strongly challenge the impugned order.
3. We have heard both the parties. The impugned items on which cenvat credit was availed are galleries and other structural as a part of conveying system. When the appellants availed the credit, they held the view that the said items are entitled for cenvat credit as capital goods. However, the revenue officers felt that the credit taken is irregular. In view of the stand of the revenue officers, the appellants were forced to reverse the credit which they did under protest. Therefore, it cannot be said that there is no dispute in the present case. The learned Consultant has cited the following decisions of this bench, which held that the supporting structures are also entitled for cenvat credit.
(i) Bellary Steel & Alloys Ltd. 2005 (180) ELT 92
(ii) Mukund Ltd. 2005 (182) ELT 61 Payment of duty under protest is a facility given to the assessee. If the amount is paid under protest, the refund claim can be flied once the issue is settled and it cannot be rejected on grounds of time bar. But if an amount is paid without protest and even if the dispute is settled in favour of the assessee and the refund claim is filed beyond a time prescribed in the Act, the same is liable to be rejected on the grounds of time bar. Therefore, when the appellant has reversed the cenvat credit under protest, it is not correct on the department to vacate the protest saying that there is no dispute. In the present case, the appellant has actually cited decisions of the Tribunal in their favour. In these circumstances, the impugned order has no merit. The protest of the appellant while reversing the cenvat credit cannot be vacated, hence we set aside the impugned order and allow the appeal with consequential relief.
(Operative portion of this Order was pronounced in open court on conclusion of hearing on 04.04.2007.)