Custom, Excise & Service Tax Tribunal
M/S Kisanveer Satara Ssk Ltd vs Commissioner Of Central Excise, ... on 20 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/1754/11 (Arising out of Order-in-Appeal No. P-II/VSGRAO/76/2011 dated 29.8.2011 passed by the Commissioner of Central Excise & Service Tax (Appeals), Pune-II ). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Kisanveer Satara SSK Ltd. Appellant Vs. Commissioner of Central Excise, Pune-II Respondent Appearance: Shri V.B. Gaikwad, Advocate for Appellant Shri S.V. Nair, Assistant Commissioner (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 20.04.2016 Date of Decision: 03.06.2016 ORDER NO. Per: Raju
The appellant, M/s Kisanveer Satara SSK Ltd., availed capital goods CENVAT Credit on structure of machineries. A show-cause notice was issued to the appellant seeking reversal of the said credit on the ground that the credit of Steel Structure material cannot be availed under the Cenvat Credit Rules, 2004. Accordingly, the show-cause notice dated 13.12.2010 was issued in respect of credit availed during 12.10.2008 to 16.03.2010.
2. Learned Counsel for the appellant argued that the notice is barred by limitation as they were under bona fide belief that capital goods credit can be availed on structural. He argued that only after the decision of Larger Bench in case of Vandana Global 2010 (253) ELT 440 (Tri-LB), they came to know that capital goods credit is not available on structure. He argued that different Benches of the Tribunal had earlier taken different view in respect of the capital goods credit on structural. He further argued that the definition of capital goods at the material time included all goods falling under Chapters 82, 84, 85 and 90 of the First Schedule to the Central Excise Tariff Act, 1985. He further argued that all the goods including structural were received classified under heading 8438.9010. He argued that in view of the above, the credit of goods received classified under Chapter 84 was admissible to them. He further pointed out that even the impugned order in para 10 observed as under:-
However, as there is a possibility of interpretation involved as to what are the inputs to capital goods and as to their eligibility for taking credit in view of contradictory decisions by various judicial authorities, I hold imposing penalty under Rule 15(1) of the Cenvat Credit Rules, 2004 is sufficient.
3. Learned AR relied on the impugned order. He further relied on the decision of the Tribunal in the case of Daya Sugar 2015 (316) ELT 394 (All), wherein it has been held that checkered plates, packing plates, sheets, sections, and staging materials classifiable under Chapter 72 of the Central Excise Tariff Act, 1985 or under Chapter 73 would not be admissible under Rule 57Q of the MODVAT Rules. He also relied on the decision of the Hon'ble High Court of Allahabad in the case of Rathi Steels & Power Ltd. 2015 (328) ELT 9 (All), wherein credit of channels, angles, plates, shape and section was denied.
4. I have considered the rival submissions. I find that the definition of capital goods at the material time considered all goods of Chapter 84 used in the factory of manufacture is capital goods. In the instant case, the goods even received classifiable under Chapter 84 and, there is no dispute regarding use of the said goods within the factory of manufacture. The decisions cited by Revenue are in case where the inputs have been received classifiable under Chapter 72/73 of the Central Excise Tariff. The said chapters are not specifically included in the definition of capital goods. Moreover, I find that the Commissioner (Appeals) has, in his order, recognized that this was an issue of interpretation. In such circumstances, when different Benches of Tribunal has different view and the matter was referred to the Larger Bench, it cannot be held that there was any mala fide involved in taking of credit. In such circumstances, extended period cannot be invoked.
5. In view of the above, the appeal is allowed and the impugned order is set aside.
(Pronounced in Court on 03.06.2016) (Raju) Member (Technical) Sinha 3 Appeal No. E/ 1754/11