C.C.E. Noida vs M/S. Kisan Sahkari Chini Mills Ltd

[Arising out of Order-in-Appeal No. 260/CE/Appl./Noida/2011 dated 31.10.2011 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Noida].

For approval and signature:

Honble Shri Ashok Jindal, 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 Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Noida .Appellants

Vs.

M/s. Kisan Sahkari Chini Mills Ltd. .Respondent

Appearance:

Shri G.R. Singh, DR for the Appellants

Ms. Rinki Arora, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 06.02.2015

FINAL ORDER NO. 50347/2015-EX(SM)

Per Ashok Jindal:

The revenue is in appeal against the impugned order wherein the Ld. Commissioner (A) has allowed input credit on the items namely Steel/ Mill Plates & HR Sheets, Jointing Sheets, V Belt, Centrifugal Screen as well as paints & welding electrodes on the premise that these are used in fabrication of capital goods.

2. The contention of the revenue is that the items like HR plate, AMP plate, mill plates and steel plates, jointing sheets and paints were not used by the respondent for fabrication of capital goods. Therefore, in these items respondent is not entitled to take Cenvat Credit. To support his contention he relied on the decision in the case of Saraswati Sugar Mills Vs. C.C.E. Delhi-III-2011 (270) E.L.T. 465 (SC).

3. On the other hand Ld. Counsel for the respondent submits that all these items were used as capital goods for parts thereof. Therefore, they are entitled to take Cenvat Credit on these items as held by Honble High Court of Rajasthan in the case of UOI Vs. Hindustan Zinc Ltd. 2007 (214) E.L.T. 510 (Raj.) which has been affirmed by Honble Apex Court. She further relied on the decision in the case of Raymond Ltd. Vs. C.C.E. Bhopal-2014 (300) E.L.T. (Tri-Del).

4. Heard the parties. Considered the submissions.

5. I have perused the impugned order. In the impugned order Ld. Commissioner (A) has examined the usage of the items in question and have given the following findings at para 4.2 which are reproduced as under:

4.2 HR Sheets, PMP Plate Mill Plates & Steel Plates / Jointing sheets and Paints.

With regard to usage of these items, the appellants have submitted that the various items of capital goods including staging / supporting structure were fabricated out of these items of iron and steel; the items in question were used in the factory for general maintenance, roofing purposes and used in erection of factory and store which in turn were used in the manufacture of the final products and therefore, I am of the opinion that all these items in question may be treated as input used for manufacture of capital goods and hence eligible for Cenvat Credit under Explanation of Rule 2 of the Cenvat Credit rules because the said explanation 2 reads as input include goods used in the manufacture of capital goods which are further used in the factory of manufacture.

6. After going through the above said findings I found that the usage of these items includes staging supporting structures and factory for general maintenance, roofing purpose and used in erection of capital stock admittedly the usage of these items which have been recorded by the Ld. Commissioner (A) in the impugned order are not in nature of usage of fabrication of capital goods. Therefore, the Cenvat Credit on these items namely HR sheets PMP plate different sheet and steel plate is not admissible to the respondent. Consequently the respondent is directed to reverse the said Cenvat Credit along with interest. As the issue is of deciding whether they are admissible to the Cenvat Credit on these items was in dispute during the relevant period.

7. Therefore, penalty on the respondent is not imposable. With these terms appeal is disposed off.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/396/2012-EX(SM)