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2016 (11) TMI 1226 - AT - Central ExciseCENVAT credit - manufacture of ordinary Portland cement and pozzolana Portland cement falling under chapter 25 of the First Schedule to the Central Excise Tariff Act, 1985 - utilisation of cenvat credit which was wrongly availed by the appellant in the first year - Held that: - we set-aside the impugned order and remand the matter back on this issue to the adjudicating authority to decide the issue of utilisation of cenvat credit which was wrongly availed by the appellant in the first year. On this issue including the issues of interest and penalty, the Commissioner shall provide an opportunity of hearing to the appellant as per law. Ld. Counsel has assured that full cooperation will be extended to the adjudicating authority. Credit amounting to ₹ 2,73,450/- availed on invoices not issued in the name of appellant - Held that: - it appears that the issue needs fresh adjudication. Accordingly, we remand the matter back to the adjudicating authority to verify the ECC code and address and utilisation of the credit and use of the goods. These factual aspects are not emerging from the impugned order. Hence, we set-aside the impugned order and remand the matter to the adjudicating authority on this issue who will decide denovo after providing an opportunity of hearing to the appellant as per law. The next issue is regarding credit amounting to ₹ 11,90,941/- which was not admissible to the appellant since the iron & steel items such as MS channel/ flat/ beams/ angles were not input or capital goods - Held that: - it appears that the utilisation of the item in the factory is not clearly reflected in the impugned order. The position in the impugned order pertaining to the utilisation of the items is not clear; when it is so, we set-aside the impugned order and remand the matter to the adjudicating authority to decide the issue in denovo proceeding after providing an opportunity of hearing to the appellant. The next issue pertains to the total cenvat credit amounting to ₹ 3,95,10,036/-, out of which the adjudicating authority has already granted relief of ₹ 1,83,62,358/-. Thus, only dispute is regarding balance amount of ₹ 2,11,47,678/-. The adjudicating authority has confirmed this demand on the ground that these items have been used for supporting structure or civil foundation - Held that: - the issue regarding the admissibility of cenvat credit of ₹ 2,11,47,678/-, we are of the view that it needs to be re-examined in the light of the decision of the Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. vs. CCE&C [2015 (5) TMI 663 - GUJARAT HIGH COURT] as well as the charge made in the show cause notice. The next issue of cenvat credit amounting to ₹ 22,70,019/- which was denied to the appellant by the adjudicating authority by referring to the definition of capital goods under Rule 2(a)(A)(i) and (ii) of CCR - Held that: - it appears that the utilisation of subject goods is not clear, when it is so then we set-aside the impugned order and remand the matter on this issue also to the adjudicating authority. The adjudicating authority shall provide an opportunity of hearing to the appellant as per law. The demand is not time barred as already discussed by the Commissioner (Appeals). Appeal allowed by way of remand.
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