M/S. Balakrishna Industries Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 102(VC)CE/JPR I/2013 dated 3/09/2013 passed by Commissioner of Central Excise, Jaipur ]

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?

M/s. Balakrishna Industries Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

ST Jaipur

Appearance:

Shri Hemant Bajaj, Advocate for the Appellants

Shri D S Singh, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 24.2.2015

FINAL ORDER NO. A/ 50644 /2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order for denial of Cenvat credit on items namely steel sheets, MS plates, channels, M S Joints, HR Sheets, channel and joints which are chargeable under Chapter 72 and 73 of CETA, 1985. For the period May, 2006 to September, 2007 a show cause notice was issued to the appellant dated 2.11.10 to deny the Cenvat credit by invoking the extended period of limitation and consequently impugned proceeding were converted into impugned demands. Aggrieved from the said order appellant is before me.

2. Learned Counsel for the appellant submits that although the appellants is having a case on merits as these items have been used for fabrication of capital goods in their factory but on limitation they were also having a good case. He submits that dispute regarding availment of Cenvat credit on these items was in dispute and matter was pending before the Larger Bench of this Tribunal in the case of Vandana Global Ltd. The same has been settled by this Tribunal on 30.4.2010 as reported in [2010 (253) ELT 440 (Tri-LB). Therefore, show cause notice issued by invoking the extended period of limitation is not sustainable.

3. On the other hand, learned AR opposed the contention of the learned Counsel and submits that department came to know during the course of audit regarding the availment of such credit. Therefore, show cause notice has been issued correctly by invoking the extended period of limitation. He further submits that there was a CBEC circular that items which are embedded to earth are not goods and the assessee is not entitled to take Cenvat credit. Therefore, extended period of limitation is correctly invoked and demands against the appellant be confirmed.

4. Heard the parties. Considered the submissions.

5. The issue whether for the impugned items, the assessee is entitled to have Cenvat credit or not was not in dispute. Admittedly the same has been settled by this Tribunal in the case of Vandana Global Ltd (supra) and the Larger Bench of this Tribunal held that Cenvat credit is not admissible. There was doubt during the impugned period for availment of Cenvat credit. In these circumstances, relying on the decision of Grasim Industries Ltd. vs. CCE vide Order No. A-53106/14 Ex(DB) dated 17.7.2014, I hold that extended period of limitation is not invokable. As extended period is not invokable, therefore impugned demands which are Cenvat credit sought to be denied is not sustainable. Consequently the impugned order is set aside. Appeal is allowed with consequential relief. Misc. Application also stands disposed of.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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