Commissioner Of Central Excise vs M/S. Fortune Metaliks Ltd

[Arising out of Order-In-Appeal No. 84/RPR-I/2013 dated 19/03/2013 passed by Commissioner of Central Excise, (Appeals I), Raipur (CG) ]

For approval and signature:

Honble Mr 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?

Commissioner of Central Excise Appellants

Raipur

Vs.

M/s. Fortune Metaliks Ltd. Respondent

Appearance:

Shri Devender Singh, AR for the Appellants

Ms. Mansi Garg, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 3.3.2015

FINAL ORDER NO. A/ 50571/2015-Ex(SM)

Per Ashok Jindal :

Revenue is in appeal against the impugned order.

2. The facts of the case are that respondent procured MS ingots, MS TMT bars, runner riser etc. and availed Cenvat credit thereon as inputs / capital goods. A show cause notice was issued for the period May,2010 to March, 2011 on 5.7.11 to allege that these items are neither inputs nor capital goods and same has been used by the respondents for supporting structures. Therefore, they are not entitled to take Cenvat Credit in the light of Larger Bench decision of this Tribunal in the case of Vandana Global Ltd. reported as [2010 (253) ELT 440 (Tri-LB)]. The adjudicating authority denied the Cenvat credit and confirmed the demand of duty along with interest and equal amount of penalty was also imposed. The said order was challenged before the Commissioner (Appeals). Later certificate issued by Chartered engineer was produced detailing the usage of the impugned items which were used by the respondents for fabrication of capital goods namely reheating furnace weigh bridge marking machine, gas producer, plant. and machinery, EOT crane system with photograph. Learned Commissioner (Appeals) has examined the usage of impugned items for each and items mentioned in the Chartered Engineers report and thereafter allowed the cenvat credit to the respondent. Against the said order Revenue is before me on the premise that Chartered Engineer cannot give concrete report of the usage of the items after they have been used in the fabrication.

3. Learned AR submits that the adjudicating authority has examined the issue and thereafter gave a finding and before the adjudicating authority the respondent has not produced the photograph for usage of the impugned items for fabrication of the capital goods etc.

4. Heard the learned AR and perused the impugned order.

5. On perusal of the impugned order, I find that the respondent has filed Chartered Engineers certificate report of usage of the items in question for fabrication of certain capital goods which were mentioned in para 2 herein above. The learned Commissioner (Appeals) after examining the design drawing therein and photographs and Chartered Engineer report that all the items used by the respondent in fabrication of the capital goods. In the case of Saraswati Sugar [ 2011 (270) ELT 465 (SC)]and India Cement Ltd.[ 2014 (310) ELT 636 Mad)] wherein the Honble High Court of Madras has held that if items in question are used for fabrication of capital goods at site, they are entitled for cenvat credit. Admittedly, in this case, the respondent has produced Chartered Engineer certificate along with report, design, drawing and photograph which clearly shows that items in question were used for fabrication of capital goods. Therefore, I do not find any infirmity in the impugned order. Same is upheld.

6. Appeal filed by the Revenue is dismissed.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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