Commissioners Of Central Excise, ... vs Schott Glass India Pvt Ltd

[ Arising out of OIA-COMMR-A--400-VDR-II-2010 dtd 9.12.2010, OIA-COMMR-A-/67/VDR-II/2011 dtd 15.12.2011, Passed by Commissioners of Central Excise, Customs and Service Tax-VADODARA-II ]

Commissioners of Central Excise, Customs and Service Tax-VADODARA-II - Appellant(s)

Vs

Schott Glass India Pvt Ltd - Respondent(s)

Represented by :

Appellant(s) : Shri J Nair (Authorised Representative) Respondent(s) : Shri Kuntal Parikh (Advocate)

For approval and signature :

Mr. P.K. Das, Hon'ble 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, Hon'ble Member (Judicial)

Date of Hearing / Decision : 16/2/2015

ORDER No. A/10273-10274 / 2015 dtd 16/2/2015

Per : Mr. P.K.Das;

Common issue is involved in these appeals and therefore, both are taken up together for disposal. The Learned Advocate appearing on behalf of the respondent seeks adjournment on the ground that the arguing counsel is not well.

2. After hearing the Ld Authorised Representative for Revenue and on perusal of records, I find that the appeals are old one and the matters may be decided at this stage.

3. On perusal of the impugned order, it is seen that the respondent availed cenvat credit on HR Coils, MS Channels, and MS Beams etc., used to make the foundation and to raise the structure for support of the Furnace. The Adjudicating Authority denied the cenvat credit. The Commissioner (Appeals) set aside the Adjudication order holding that HR Coils, MS channels, and MS Beams etc., utilised to make the foundation and to raise structure for support the furnace, which is capital goods and cenvat credit is admissible. It is seen that the respondent also argued that the demand is barred by limitation and no findings was given by the Commissioner (Appeals) as he decided the matter on merits.

4. I find that the Larger Bench of the Tribunal in the case of Vandana Global Ltd vs CCE, Raipur  2010(253)ELT.440(Tri.LB) held that goods like cement and steel items used for laying foundation and for building supporting structure, cannot be treated either as input or capital goods or inputs to the final products and therefore no credit of duty paid on the said item can be allowed under the Cenvat Credit Rules. In my considered view, the Commissioner (Appeals) should have examined utilisation of all the items in detail alongwith other issues like limitation.

5. In view of the above discussion, the impugned order is set aside. The matter is remanded to Commissioner (Appeals) to decide afresh on merit and limitations, after considering the decision of the Larger Bench and the case laws relied by the Learned Advocate. Needless to say that the Commissioner (Appeal) shall give proper opportunity of hearing before the decision. The appeal filed by the Revenue are allowed by way of remand. C.O. gets disposed of.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial)

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