M/S. Kl Concast P. Ltd vs C.C.E. & S.T. Ghaziabad
- CitationAppeal No. E/51195/2014-EXSM)
Ratio decidendi
The rule this decision rests on
Whether an item is an input or part of capital goods for Cenvat credit purposes is a question of fact, to be decided on evidence of its actual use, such as a chartered engineer's certificate; where the claimant's evidence of use is uncontradicted by the revenue, credit must be allowed for items so shown to have been used for fabrication of capital goods, parts of capital goods, or as inputs in manufacture. Where the evidence does not establish use for such purposes, the item is not entitled to credit, and the reasoning in the order does not expressly extend credit to iron and steel bars. Where the department's reliance on an earlier High Court decision is misplaced because that decision concerned only questions of fact and raised no substantial question of law, it does not govern a dispute turning on facts established by evidence. For the period before 30.04.2010, the extended period of limitation is not invokable, following the Tribunal's earlier decision in Vandana Global, so a demand for that period cannot rest on the extended period.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Original No. GZB-Excus-000-186/13-14 dated 10.12.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Ghaziabad].
For approval and signature:
Honble Shri 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. KL Concast P. Ltd. .Appellants
Vs.
C.C.E. & S.T. Ghaziabad .Respondent
Appearance:
Shri Rajesh Chibber, Advocate for the Appellants
Shri V.P. Batra, DR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing: 15.04.2015
FINAL ORDER NO. 51441/2015-EX(SM)
Per Ashok Jindal:
The appellant is in appeal against the impugned order denying the Cenvat Credit on steel items namely HR sheet, MS Bar and Round, TMT bars, Shapes and Sections, Mould Tubes, Iron And Steel Bars and Aluminum Bars on the premise that these items are not input of capital goods as per Rule 2 A of the Cenvat Credit Rules 2004.
2. The Ld. Counsel for the appellant submits that all these items were used by the appellant either for fabrication of capital goods or have been consumed in the furnace itself as inputs. In support of the contention of the appellant, the appellant filed a Chartered Engineer Certificate explaining the usage of these items. Therefore, they are entitled to take Cenvat Credit.
3. On the other hand, Ld AR oppose the contention of the Ld. Counsel and submits that the Ld. Commissioner (A) has discussed the issue in detail and seen the usage of these items. In some of the items he has allowed Cenvat Credit. But the items mentioned herein above were found by ld. Commissioner (A) were neither input nor capital goods and appellant is not maintaining any records of fabrication of capital goods and usage thereof. No documentary evidence has been produced by the appellant before the lower authorities as well as before this Tribunal. Therefore, Cenvat Credit is not available to the appellant. To support his contention he relied on the decision in the case of Bajaj Hindustan Ltd. Vs. UOI-013 (295) ELT 20 (Allbd).
4. Heard the parties. Considered the submissions.
5. The short issue involved in the matter is that whether the appellant is entitled to take Cenvat Credit on the items mentioned here in above in para 1 or not as capital goods or input thereof. The contention of the appellant is that they have used these items in fabrication of capital goods or used as input in manufacturing of their final product. To support this contention they have produced filed a certificate from Charter Account showing usage of the items. I have examined the certificate which shows the usage of the items, discussed here under:
6. On going through the certificate produced by the Charted Accountant which shows that except items iron and steel bars all other items are used for either fabrication of capital goods or part of capital goods or used as input by the appellant in manufacturing of the final product. Revenue has not produced any contrary evidence to the report of the Charted Engineer. Further, the reliance on the Ld. AR in the case of Bajaj Hindustan Ltd. (Supra) is not applicable to the facts of this case as in that case Honble High Court has categorically held that:
The question raised in these appeals are questions of fact and thus no substantial question of law arise from the consideration by us in these appeal.
7. Admittedly in this case whether the appellant is entitled to take Cenvat Credit on the items discussed here in above in para 1 is a fact whether they have been used by the appellant for fabrication of capital goods or part of capital goods or used as input in manufacturing of final product or not. This fact is ascertainable by the report of the Charted Engineer produced before me. Therefore, except for the iron and steel bars I allow Cenvat Credit to the appellant as usage of iron and steel bars have not been discussed by the Charted Engineer in his report. Further, the Ld. Counsel for the appellant has also contested the issue of limitation on the ground that show cause notice has been issued on 24.02.2012 for the period 2007-08 to 2011-12 as issue was settled by this Tribunal in the case in the case of Vandana Global vide Order dated 30.04.2010. Therefore, I hold that for the period prior to 30.04.2010 extended period of limitation is not invokable. In these circumstances, whatever the demand pertains to the period 30.04.2010 till 31.03.2012 pertaining to denial of Cenvat Credit iron and steel bars used by the appellant is denied. With these terms appeal is disposed off.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
E/51195/2014-EXSM)
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