Commissioner Of Central Excise vs M/S. Hira Power & Steels Ltd
- CitationExcise Appeal No. 59106 of 2013 - Ex (SM)
Ratio decidendi
The rule this decision rests on
Where the adjudicating authority records the assessee's explanation of the use of disputed goods and does not controvert it with cogent evidence, nor show that the assessee was asked during the hearing to produce particular documents, the denial of Cenvat credit on the ground that such documents were not supplied cannot stand; the assessee's documentary evidence produced before the Commissioner (Appeals) is admissible under Rule 5(4) of the Central Excise (Appeals) Rules, 2001, and may be considered on merits in deciding whether the goods were used in the manufacture or repair and maintenance of capital goods.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 102/RPR-I/2013 dated 3.4.2013 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
& Customs, Raipur (CG)
Vs.
M/s. Hira Power & Steels Ltd. Respondent
Appearance:
Shri G R Singh, AR for the Appellants
Shri Rupinder Singh , Advocate for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing /decision: 16.1.2015
FINAL ORDER NO. A/ 50187 /2015-Ex(SM)
Per Ashok Jindal :
Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) has allowed the inputs service credit on HR sheets, HR plates, MS pipes, MS Flat, joist, pate mill pate, MS square, MS channel, MS TMT bar, MS beam, plate, steel pipe, MS tube, pipes and tubes, G I pipe, HSM plate etc.
2. Brief facts of the case are that the respondents are manufacturer of ferro alloys i.e. ferro manganese. It was found that during the period July, 2010 to May, 2011, the respondent availed Cenvat credit on the items mentioned hereinabove in para 1 which was sought to be denied by the Revenue as these items are not capital goods, therefore are not entitled to take Cenvat credit on these goods. The show cause notice was issued and same was adjudicated. Cenvat credit was denied along with interest. Penalty was also imposed. Said order was challenged before learned Commissioner (Appeals) who set aside the same. Aggrieved from the said order, Revenue is in appeal.
3. Learned AR submits that these items are not capital goods and are structural items, therefore, respondents are not entitled to take Cenvat credit on these items as per the decision of Vandana Global Ltd. [ 2010 (253) ELT 440 (Tri-LB)] . He further submits that as per the Rule 5 of Central Excise (Appeals I), 2001, the learned Commissioner (Appeals) can not consider the additional evidence produced before him. Therefore, impugned order is required to be set aside.
4. On the other hand, learned Counsel for the respondent submits that they have explained the usage of all the items in question in their reply to the show cause notice and in all of these usage has been recorded by the adjudicating authority in its order. As these items were used in manufacturing or repair and maintenance of capital goods, but the learned adjudication authority did not give any hide to their request and held that as respondent has not supplied the supporting documents like drawing, designing etc. for use of these items, therefore, they are not entitled to Cenvat credit but these drawings were produced before learned Commissioner (Appeals) and acertificate from the Chartered Accountant was also produced before Commissioner who passed the impugned order on merits. Therefore, impugned order is to be upheld.
5. Heard the parties and considered the submissions.
6. In this case Cenvat credit is sought to be denied on the items mentioned hereinabove in para 1 on the premise that these items were used as structurals items, the usage of which items has been explained by the respondents in reply to the show cause notice and same has been recorded by the adjudicating authority but same has not been controverted by the adjudicating authority with cogent evidence and denied the Cenvat credit on the ground that respondent has not provided drawings and design but nowhere from the said order it is coming out that adjudicating authority has asked to show these documents from the respondents during the course of hearing. Therefore, evidence provided by the respondent before learned Commissioner (Appeals) for consideration are admissible as per Rule 5 (4) of the Central Excise (Appeals) rules, 2001. In these circumstances, learned Commissioner (Appeals) has considered the usage of all items and thereafter arrived at the decision that these items have been used in manufacturing or repair and maintenance of capital goods. Therefore, I do not find any infirmity in the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.
(dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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