2010 (6) TMI 401 - AT - Central Excise

Cenvat credit Capital goods - M.S. Channels parallel flange beam parallel flange column and M.S. angle have been used only for fabricating supporting structures - respondents are not eligible for credit as held by the original authority - order of the Commissioner (Appeals) allowing the credit is not proper Demand Limitation cenvat credit - Tribunal in belief that the impugned items were capital goods was bona fide - order of the original authority no material available to show that the respondents failed to furnish any relevant information which was required under the law - question of suppression or misstatement justifying invocation of extended period does not arise - imposition of penalty does not arise

Summary

Issues:
Delay in filing cross-objection, eligibility for cenvat credit on specific items, invocation of extended period of limitation, imposition of penalty.

Delay in filing cross-objection:
The appeal involved a delay in filing the cross-objection related to the original order. The application seeking condonation of delay was filed due to the delay in filing the cross-objection.

Eligibility for cenvat credit on specific items:
The case revolved around the eligibility of the respondents for cenvat credit on M.S. Channel, parallel flange beam, parallel flange column, and M.S. angle used for fabricating supporting structures. The original authority confirmed the demand, but the Commissioner (Appeals) set aside the order, leading to the Department's appeal.

Invocation of extended period of limitation:
The Department argued that the items in question were not capital goods and invoked the extended period of limitation. The Larger Bench's decision in the case of Vandana Global Ltd. was cited to support the argument that the items could not be treated as capital goods.

Imposition of penalty:
The Department conceded that due to divergent decisions prevailing at the time, the penalty might not be warranted. The Tribunal found that the respondents' belief that the items were capital goods was bona fide, and there was no evidence of suppression or misstatement justifying the invocation of the extended period of limitation or imposition of penalty.

In the judgment, the Tribunal referred to the decision of the Larger Bench in the case of Vandana Global Ltd., which clarified the definition of capital goods and the eligibility for cenvat credit. The Tribunal held that the items in question were used solely for fabricating supporting structures, making the respondents ineligible for cenvat credit. However, the Tribunal found that the respondents' belief was bona fide, and there was no evidence of suppression or misstatement, leading to the order of the Commissioner (Appeals) being set aside.

The Tribunal restored the original authority's order with modifications, stating that the respondents were not eligible for cenvat credit on the items. The duty demand and interest were to be calculated within the normal period of limitation, and the matter was remitted to the original authority for this purpose. The penalty was deemed unwarranted, and the order of the Commissioner (Appeals) setting aside the penalty was sustained. The appeal and cross-objection were disposed of accordingly.