Ashirwad Steels And Industries Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 36,37 & 38/2011 (H-III) (CE) dated 29/03/2011 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals-III), Hyderabad.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

ASHIRWAD STEELS AND INDUSTRIES LTD PEETAMPALLI ROAD, VELIMINEDU VILLAGE & POST-CHITYAL MANDAL, NALGONDA DIST AP 508114 Appellant(s)

Versus

Commissioner of Central Excise, Customs And Service Tax HYDERABAD-III OPP LB STADIUM ROAD, BASHEERBAGH, HYDERABAD - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

None K. NAGARAJA RAO PLOT NO.41, INDIRANAGAR VIJAYANAGAR COLONY, HYDERABAD-500 057 For the Appellant

Mr. S. Teli, Dy. Commissioner (AR)

For the Respondent

Date of Hearing: 29/05/2015

Date of Decision: 29/05/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21258-21260 / 2015

Per : ARCHANA WADHWA

Nobody appeared for the appellant. Accordingly I have heard the learned DR and have gone through the impugned order. As the issue involved in all three appeals is identical, they are being disposed of by a common order.

2. Demand stands confirmed against the appellant by denying them the benefit of CENVAT credit of duty availed in respect of various iron and steel items used as supporting structural.

3. I find that the Larger Bench decision in the case of Vandana Global Ltd. vs. CCE, Raipur as reported in 2010 253 ELT 440 (Tri-LB) has held that such availment is not in accordance with law. However, I find that in one of the appeals, the demand has been raised by invoking the longer period of limitation. Tribunal in various decisions has observed that when the law was in favour of the assessee, during the relevant period and so declared contrary to the assessee, only subsequently, no malafide can be attributed to him so as to invoke longer period of limitation. As such, I find that the demands raised for longer period of limitation are not sustainable. The same are accordingly set aside.

3.1 It is seen that wherever the demands are within the limitation period, the appellant has taken a categorical stand that they have used certain items for fabrication of capital goods, in which case the CENVAT credit is available to them even in terms of the Larger Bench decision in the case of Vandana Global. The said fact can be verified and examined only at the level of original adjudicating authority. Accordingly, I set aside the impugned orders and remand all the three matters to the original adjudicating authority for verification of the appellants claim and to decide the availability of the CENVAT credit, based upon the same and only for the period falling within the limitation.

3.2 As regards penalty, I find that inasmuch as the issue was contentious and the earlier orders were in favour of the assessee and there being no malafide, imposition of penalty is not justified, the same is accordingly set aside.

All the three appeals are disposed of in above manner.

(Order pronounced in open court)

ARCHANA WADHWA JUDICIAL MEMBER

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