M/S. Mangal Sponge & Steel Pvt. Ltd vs C.C.E. & S.T. Raipur
- CitationAppeal No. E/60069/2013-EX(SM)
Ratio decidendi
The rule this decision rests on
Where a Chartered Engineer's certificate establishes that steel items were used in the fabrication of capital goods, as directed by the Tribunal in an earlier round of remand, an unexplained rejection of that certificate on the basis of a bare assertion that the items were used for supporting structures is not admissible evidence, and the assessee is entitled to Cenvat credit on the quantity so shown. Where the material relied upon by the adjudicating authorities to deny credit consists only of a general statement that all the items were used for supporting structures, without tangible evidence, such a statement cannot displace specific expert evidence of use in capital goods; credit is allowable to the extent of the quantity established by that evidence, and any residual quantity not so established is left open to separate proceedings by the Revenue.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 188/RPR-1/2013 dated 15.07.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].
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. Mangal Sponge & Steel Pvt. Ltd. .Appellants
Vs.
C.C.E. & S.T. Raipur .Respondent
Appearance:
Shri A.K. Mishra, Consultant for the Appellant
Shri R.K. Mishra, DR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing: 17.06.2015
FINAL ORDER NO. 52001/2015-EX(SM)
Per Ashok Jindal:
The appellant is in appeal against the impugned order denying Cenvat Credit on steel items like Plates, Channels, Joists, Beams, Flats, etc. for the period July 2004 to march 2005. The contention of the Revenue is that these items are neither inputs nor capital goods. Therefore, they are not entitled to take Cenvat Credit thereon. In earlier round of litigation matter travelled upto this Tribunal and this Tribunal vide order no. 764-765/2010-SM(BR) dated 14.07.2010 remanded matter back to the Adjudicating Authority to observe use of these items and allow Cenvat Credit. As per the decision of the Larger Bench of this Tribunal in the case of Vandana Global Ltd. Vs. CCE Raipur-2010 (253) ELT 440 (Tri-LB).
2. Therefore, in second round of litigation the appellant produced Chartered Engineer Certificate confirming the fact of usage of these items in heat exchanger, Kiln cooler After Burning Chamber, Product Separator, cooler conveyers etc. There is a quantity of 49.85 MT which has been used for supporting structures embedded to earth. On these appellant has not availed Cenvat Credit. The appellant has availed only part of the items i.e. 146.925 MT of Cenvat Credit which is used for fabrication of capital goods. Therefore, appellant is entitled to take Cenvat Credit. He further submits that both the lower authorities have discarded certificate issued by Chartered Engineer who is an expert in the field without assigning any reason. Therefore, impugned order is to be set aside.
3. On the other hand Ld. AR supported the impugned order and submits that superintendent has examined an gave his report that these items have been used for supporting structures. Therefore, they are not entitled to take Cenvat Credit.
4. Heard the parties. Considered the submission.
5. It is no doubt some of the items have been used by the appellant for fabrication of supporting structure embedded to earth for which the Chartered Engineer who is an expert in the field as already given in his report that appellant has used the quantity of 49.85 MT of these items for supporting structures and on the said quantity appellant has not claimed Cenvat Credit. The appellant is able to show by way of Chartered Engineer Certificate that out of the total quantity 150 MT were used by the appellant for fabrication of capital goods. These observations of the chartered engineer which have been relied by the appellant have been discarded by the authorities below without any tangible evidence. Merely saying that all the items were used for supporting structure is not admissible evidence. Therefore, as the appellant has been able to show the usage of the items in question for fabrication of capital goods as directed by this Tribunal in the earlier round of litigation, I have no hesitation to hold that appellant is entitled to take Cenvat Credit on this quantity. For the remaining quantity if revenue feels that appellant has taken the credit they may initiate another proceeding against the appellant. But to the quantity upto 150 MT appellant is entitled to take Cenvat Credit.
With these terms I dispose off the appeal by setting aside the impugned order.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
3
E/60069/2013-EX(SM)
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