M/S. Good Luck Engg. Co vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. GZB-EXCUS-000-APP-178-13-14 dated 20/11/2013 passed by Commissioner of Central Excise (Appeals) Ghaziabad]

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. Good Luck Engg. Co. Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, Ghaziabad

Appearance:

Shri Rajesh Chibber, Advocate for the Appellants

Shri V P Batra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 10.04.2015

FINAL ORDER NO. A/ 51577/2015-(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein the Cenvat credit has been denied on the steel items on the premise that these are neither inputs nor capital goods.

2. The facts of the case are that the appellant is a manufacturer of forged blanks of carbon steel, alloy steel and stainless steel. During the period April, 2010 to August, 2010, the appellant procured certain steel items. The allegation of the Revenue is that these items are neither inputs nor capital goods, therefore, appellant is not entitled to take Cenvat credit. Therefore, show cause notice was issued on 16.2.2012 to deny the Cenvat credit and consequently to demand duty along with interest and imposition of penalty. On adjudication, demand was dropped on the premise that appellant has been able to show the usage of the items in capital goods. Therefore, the items for which the appellant failed to produce any evidence before the adjudicating authority that these items are not used in fabrication or repair and maintenance of capital goods, the Cenvat credit was denied. The said order was challenged before learned Commissioner (Appeals) before whom the CAs certificate was produced and after going through the CAs certificate, learned Commissioner (Appeals) denied the Cenvat credit on the ground that these items are not used for capital goods but dropped the penalty on the items that there was no malafide intention of the appellant to avail inadmissible Cenvat credit.

3. Learned Counsel appearing for the appellants submits that as show cause notice was issued by invoking the extended period of limitation and the Commissioner (Appeals) has observed that there was no malafide intention to avail inadmissible Cenvat credit, therefore, demand is also not sustainable as same has been confirmed by invoking extended period of limitation. He further submits that he produced Chartered Accountants certificate which shows that steel items has been used for repair and maintenance of capital goods, furnace and crane systems. Therefore on merit, they are entitled to avail Cenvat credit.

4. On the other hand, learned AR reiterated the finding of the impugned order on merits but submits that although learned Commissioner (Appeals) has dropped the penalty but Revenue may not have challenged the said finding on the ground that amount involved is less than Rs.50,000/-.

5. Heard the parties. Considered the submissions.

6. In this case, demand has been confirmed against the appellant by invoking the extended period of limitation. Admittedly, Commissioner (Appeals) has dropped the penalty holding that there was no malafide intention. In these circumstances, I hold that extended period of limitation is not invokable. Consequently demand pertaining to the extended period of limitation is not sustainable. In these circumstance, the impugned order qua demand of duty along with interest is set aside and appeal is allowed with consequential relief.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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