2017 (4) TMI 800 - AT - Central Excise

CENVAT credit - M.S. items under the category of capital goods - Held that - It is clear from the records that M.S. items were used for supporting structures in the milling section for support of slurry tank etc - the period involved is prior to 07.07.2009 on which date, the explanation in the definition of input was introduced restricting the use of M.S. items - the credit availed on MS items used for supporting structures is eligible for credit. Extended period of limitation - Held that - there is no evidence to establish that the appellant has committed suppression of facts with intent to evade payment of duty. It is also seen that the appellant has disclosed the credit availed on MS items in the ER-1 returns filed by them. Such ER-1 return is the basis for issuance of show cause notice - extended period not invoked. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Disallowance of credit on M.S. items under the category of capital goods.

Analysis:
The appeal was filed against the disallowance of credit on M.S. items used as capital goods. The appellant, engaged in manufacturing various alcohol products, was issued a show cause notice for irregular availment of CENVAT credit on capital goods, M.S. items, and input services of GTA. While the credit on capital goods was allowed, the credit on M.S. items and GTA services was disallowed. The appellant argued that the M.S. items were used for structural support at the milling section and should be eligible for credit. The period in question was before the restriction on the use of M.S. items was introduced. The appellant cited various judgments analyzing the eligibility of credit on M.S. items for support structures of capital goods.

The Assistant Commissioner argued that when M.S. items are used for supporting structures embedded in the earth, they become immovable property, making them ineligible for credit. The Tribunal examined the purpose for which the M.S. items were used and found that they were indeed used for supporting structures in the milling section. The Tribunal referenced previous cases to support the appellant's argument that credit on M.S. items used for supporting structures should be allowed. The Tribunal also noted that the appellant had not contested the demand related to GTA services.

The Tribunal held that the denial of credit on M.S. items was unjustified based on the appellant's own case law and set aside the impugned order. The Tribunal found no evidence of suppression of facts by the appellant and noted that the details of credit availed on M.S. items were disclosed in the ER-1 returns. As a result, the allegation of suppression of facts to evade duty was deemed baseless. The Tribunal allowed the appeal in part, setting aside the demand related to credit availed on M.S. items, while upholding the liability on GTA services. The impugned order was modified accordingly, granting the appellant consequential reliefs.

In conclusion, the Tribunal ruled in favor of the appellant regarding the eligibility of credit on M.S. items used for supporting structures as capital goods, based on legal precedents and the absence of evidence supporting the allegation of suppression of facts.