M/S. Venkateshwara Power Project Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 571/2012 dated 18/10/2012 passed by Commissioner of Central Excise (Appeals), MANGALORE.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters 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 the 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

M/s. Venkateshwara Power Project Ltd A/p. Bedkihal, Tal.chikodi BELGAUM - 590001 KARNATAKA Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax BELGAUM NO.71, CLUB ROAD, CENTRAL EXCISE BUILDING, BELGAUM  590 001. KARNATAKA Respondent(s)

Appearance:

Mr. V. B. Gaikwad, Advocate No.328, E Ward, D/10, Royal Plaza, Dabholkar Corner, Kolhapur  416 001. For the Appellant

Mr. Mohd. Yusuf, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 29/04/2015

Date of Decision: 29/04/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 21093-21095 / 2015

Per : ARCHANA WADHWA

After dispensing with the condition of pre-deposit in all the three cases as they arise out of the same impugned order passed by the Commissioner (A), we decide the appeals itself. Inasmuch as we note that the issue requires factual verification.

2. The issue involved in the present appeals is availment of CENVAT credit of duty paid on various iron and steel items. According to the Revenue, the same has been used as supporting structurals in which case they cannot be held to be cenvatable. On the other hand, the appellants contention is that some of the items were also used for fabrication of the capital goods in which case the same would be admissible for CENVAT credit.

3. We find that the law stands clarified by the Larger Bench decision of the Tribunal in the case of Vandana Global Ltd. vs. CCE, Raipur reported in 2010 253 ELT 440 (Tri-LB). However, the appellants claim that some of the items were used for fabrication of machines, is required to be verified. It is seen that during adjudication, based upon the contention of the appellant, such verification was done by the Range Officer along with the Sector Officer. However, the Commissioner (A) has not referred to such verification on a simpliciter ground that it is not possible to rely on this report as it was not mentioned in the show-cause notice.

4. We find no appreciation for the above reasoning of the Commissioner (A). Admittedly reply can be filed by the assessee only after issuance of show-cause notice and if based upon the assessees contention, verifications have been done, such verification would become part of the adjudication proceedings and are required to be taken into account by the authorities. Learned advocate also submitted that such verification was not provided to them. As such, we are of the view that the matter needs to be remanded to the original adjudicating authority for consideration of the said verification report.

5. We also note that the demands in some of the cases are barred by limitation. Tribunal in a number of decisions have held that where the law stands clarified subsequently by the Larger Bench and when the decisions during the relevant period were in favour of the assessee, no bona fide can be attributed to them so as to invoke extended period of limitation. As the matter is being remanded, the appellant is at liberty to raise the issue of limitation and to rely upon various precedent decisions.

6. All the three appeals are remanded. We make it clear that we have not expressed any views on the merits of the case and the appellant is at liberty to raise all the issues before the adjudicating authority.

7. Stay petitions as also appeals gets disposed of in above manner.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

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