TMI Blog2013 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... g and dismissing the appeals. We do not find that the judgment suffers from any error apparent on the face of the record. The grounds quoted as above to review the judgment were argued by learned counsel for the appellant and were considered in the judgment dated 8.3.2013 [2013 (3) TMI 365 - ALLAHABAD HIGH COURT], in which we held that the questions raised in the appeals are questions of fact and that there was no substantial question of law to be considered in the appeals. - Decided against the assessee. - Civil Misc. Review Application No.173312 of 2013, Central Excise Appeal No.815 of 2012, Civil Misc. Review Application No.173327 of 2013, Central Excise Appeal No.816 of 2012, Civil Misc. Review Application No.173342 of 2013, Central Excise Appeal N - - - Dated:- 30-8-2013 - Hon. Sunil Ambwani And Hon. Bharat Bhushan, JJ. ORDER We have heard Shri S.K. Bagaria assisted by Shri Sanjay Kumar Singh and Shri Ashish Mishra for the applicants and Shri R.C. Shukla, Standing Counsel, Union of India for the respondents. These three review applications have been filed by M/s Bajaj Hindusthan Ltd.-the applicant to review the judgment dated 8.3.2013 by which we have dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectfully submitted that while confirming the order of CESTAT, this Hon'ble Court omitted to look into the documents on records clearly establishing the extent or actual quantity of inputs used in the fabrication of capital goods which in turn were used in the manufacture of excisable items. viz how much inputs was purchased under duty paid invoice, how much out of that inputs was used in manufacture of which capital goods, which in turn was actually used in manufacture of excisable goods. The CENVAT credit was taken only in respect of that input which was actually used in the manufacture of capital goods. It is respectfully submitted that this Hon'ble Court by not adverting to the documents on record independently, failed to notice the perversity in the orders of the authorities below and mechanically confirmed the order of the CESTAT, hence there is error apparent on the fact of record. For the sake of convenience, a chart annexed herewith as Annexure No.R5 prepared on the basis of these documents available on record before the High Court shows that the petitioner has produced documents and clearly established as to how much a particular input was used in the fabrication of a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods particularly in view of the following undisputed positions. (J) Because, this Hon'ble Court and the CESTAT did not appreciate that in view of the Explanation 2 to Rule 2 (k), if the inputs have gone into the manufacture of capital goods, then they are eligible for CENVAT credit. Such capital goods must be put to actual manufacture of final product. The petitioner have established clear linkage and have produced the relevant data to show that these inputs were used in the manufacture of capital goods which were in turn used in the manufacture of excisable goods. (K) Because, the High Court did not appreciate that in the absence of any doubt on the genuineness of the aforesaid documents, the findings of the CESTAT/ Commissioner that name, description, quantity and usage are not mentioned are contrary to record and ex-facie perverse. It is submitted that it is one thing to say that out of the claims made by the appellants, some items did not answer the definition of "capital goods" but it is completely different thing to disallow the whole of the credit as if no capital goods were manufactured at all and as if the factory itself was not established. These findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were fully exempt from central excise duty under Notification no.67/95-CE. There is no provision required any other record or formality. High Court/ Tribunal did not appreciate that the Commissioner Excise did not consider this Notification and therefore the assessee could not make any submissions thereon because in the SCN, the violation of any other rule was alleged, the assessee did not get opportunity to make submissions thereon in respect of the said Notification. (P) Because, this Hon'ble Court in para 25 of its judgment and CESTAT in para 5 of its judgment, both erred in law in quoting wrong provisions of statute and on that basis deciding the matter. The High Court quoted Explanation 2 to Rule 2 (k) "input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) of Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods". This was inserted by Notification No.16/2009-C.E (N.T), dated 7.7.2009. This explanation is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Meerut-1 adjudicating the matter in respect of all the three units disallowed CENVAT credit claimed by the appellants on inputs for manufacture of capital goods and capital goods and also imposed penalty on the amount equal to demand in respect of all the three units under Rule 13 of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The CESTAT dismissed all the appeals on the grounds that no evidence was produced by the appellant with respect to uses of the items for manufacture of the capital goods. The applications filed under Section 35-C (2) of the Central Excise Act, 1944 for rectification of the mistakes were also dismissed. After considering the arguments of Shri S.K. Bagaria the Court found that CESTAT had recorded findings of fact that there was no column in ER-1 nor there was any instruction or circular for maintaining any documents recording details of the inputs for manufacture of capital goods. It is submitted that the Tribunal's findings about non-filing of specified details and evidence was perverse. The appellants had brought the goods and items for manufacture of capital goods in the factory and which were further u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Explanation-2 of Rule 2 (k) by Notification dated 7.7.2009 is clarificatory in nature as the items specified were always held to be excluded in the manufacture of capital goods. The items specified in the notification dated 7.7.2009 are the items, which are used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. These were never included in the Explanation-2, even prior to its amendment. It included only those goods as inputs, which are further used in manufacture of capital goods. The reliance placed on the judgment in Saraswati Sugar Mills v. Commissioner of Central Excise, Delhi-III, AIR 2011 SC 3286 is relevant for consideration and in which it was found that the iron and steel structures did not go into the composition of vacuum pans, crystallizers etc. Only those items used for raising structure to support various machines, parts of machineries of plant were found to be covered by Explanation to Rule 57Q as capital goods. In para 28 of the judgment it was held that the change after the amendment of Explanation 2 to Rule 2 (k) will not make any difference in the present case as the CESTAT had confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondence between the jurisdictional ranges and the concerned noticee units. The Commissioner further observed that the facts required by the ranges were regarding the capital goods stated to be manufactured as the availment of credit on such inputs depend upon their usage in the manufacture of capital goods. This information was not supplied voluntarily and was also withheld in the enquiry. The information was not furnished even during the course of adjudication proceedings. It is apparent that on these findings recorded by the Commissioner the question of levy of penalty was neither raised nor decided by CESTAT and thus it was found that no substantial question of law arises for consideration. The second issue regarding the denial of CENVAT Credit on the capital goods, which was fully exempt from central excise duty, was neither raised nor decided by the CESTAT. The counsel appearing for the appellants had raised the issue. The question, however, was not considered as it was neither raised nor decided by the CESTAT. In appeal under Section 35G of the Central Excise Act, 1944, the appellant is permitted to raise only such ground, which was raised and decided by the CESTAT. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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