Commissioner Of Central Excise & S.T., ... vs M/S. Tata Chemicals Limited
- CitationAppeal No. : E/758/2010
Ratio decidendi
The rule this decision rests on
Where a rule disallows CENVAT credit on capital goods received in the factory before a specified date, the disallowance does not apply to capital goods in respect of which credit was already allowable under an earlier rule or notification before that date; credit on goods received before the date is therefore admissible where the goods fall within that saving. Where the assessee's capital goods were received before the cut-off date and the undisputed record establishes that fact, the assessee is eligible to avail the credit, and the demand founded on the amended provision cannot stand.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA-53/2010/COMMR-A-/RAJ dated 18.02.2010, Passed by Commissioner (Appeals) Central Excise, & S.T., Rajkot)
Commissioner of Central Excise & S.T., Rajkot : Appellant (s)
VERSUS
M/s. Tata Chemicals Limited : Respondent (s)
Represented by :
For Revenue : Shri G.P. Thomas, Authorised Representative For Respondent (s) : Shri Anand Nainawati, Advocate
For approval and signature :
Mr. P.K. Das, Honble Member (Judicial)
1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 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
CORAM :
Mr. P.K. Das, Honble Member (Judicial)
Date of Hearing / Decision : 10.04.2015
ORDER No. A/10316 / 2015 Dated 10.04.2015
Per : Mr. P.K. Das;
Revenue filed this appeal against order of the Commissioner (Appeals) whereby the adjudication order was set-aside.
2. After hearing both the sides and on perusal of the records, I find that the Respondent was engaged in the manufacture of Soda Ash and Soda-bicarb classifiable under sub-heading No. 2836.10 and 2836.20 of the schedule to Central Excise Tariff Act, 1985. They availed modvat credit of Rs. 32,45,712/- on capital goods received in their factory prior to 16.03.1995 under the cover of 55 invoices. A show cause notice dated 26.7.1996 was issued alleging that they have availed modvat credit wrongly, in view of the amended provisions of Cenvat Credit Rules, vide Notification No. 11/95-CE (NT) dated 16.03.1995. The adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty of equal amount of duty. Commissioner (Appeals) set-aside the adjudication order.
3. The main contention of the learned Authorised Representative for the Revenue is that the respondent received the capital goods prior to 16.03.1995 and therefore, they are not eligible to avail CENVAT credit in view of the amended provisions by Notification dated 16.03.1995. It is also contended that there is dispute in respect of the three invoices which are time barred.
4. For proper appreciation of the case, relevant portion of Rule 57Q, as inserted by Notification No. 11/95-CE (NT) dated 16.3.95 is reproduced below:-
(2) Notwithstanding anything contained in sub-rule (1), no credit of the specified duty paid on capital goods (other than those capital goods other than those capital goods in respect of which credit of duty was allowable under any other Rule or notification prior to the 16th day of March, 1995) shall be allowed if such capital goods were received in the factory before the 16th day of March, 1995.
5. I find that sub-rule 2 of Rule 57Q clearly provide that other than those capital goods in respect of which credit of duty allowable under earlier Rule or Notification prior to 16.03.1995, shall be allowed if such goods received in their factory even before 16.03.1995. In the present case, there is no dispute that the respondent received the capital goods prior to 16.3.1995, hence they are eligible to avail cenvat credit.
6. Learned Authorised Representative for the Revenue submitted that the Commissioner (Appeals) wrongly extended the benefit of limitation in respect of three invoices. For proper appreciation of the case, the relevant portion of the impugned order is reproduced below:-
10.1 On scrutiny of the amended explanation and sub-rule (2) of the Rule 57Q of the said rules in consideration with the Notification No. 11/95-CE (NT) dated 16.03.1995, I observe that in the said notification at (d) and (e), the Chapter headings have been specifically mentioned for the capital goods received. The modvat credit in respect to 52 items (out of total 55 items), have been denied as they have been received by the appellant prior to 16.3.1995, while the said (d) and
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