TMI Blog2013 (9) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... be ‘capital goods’ in terms of clause (iii) given under Rule 2(a)(A) - The submission emphatically made by the appellant was that none of the steel items in question was used to fabricate supporting structures - This argument was diametrically opposed to the contention raised by his client before the adjudicating authority in the first reply to the show-cause notice - Prima facie, this conduct of the party is self-defeating - The appellant had specified the Tariff classification of the steel items - Some of the items were classified under Chapter 84 and some of them under Chapter 85 and others under Chapters 72 & 73 - The plea of bona fide belief was also believable - It was not in dispute that there were conflicting decisions on the MODVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding a total amount of over Rs. 2.29 crores denied as CENVAT credit for the period from December 2007 to August 2011 and a total amount of Rs. 1.93 crores imposed as penalty. The impugned demand arises from denial of CENVAT credit on numerous steel items such as M.S. Pipes, Chains, Plates, Flats, Angles, Channels, Sheets, Rods Beams, etc. which were claimed by the assessee to be capital goods falling under Rule 2(a)(A) of CENVAT Credit Rules, 2004 and found by the adjudicating authority to have been used in the fabrication of supporting structures. The impugned order was passed in adjudication of three show-cause notices, one of which invoked the extended period of limitation on the alleged ground of suppression of facts with intent to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect held the field during the period of dispute prompting the assessee to hold the aforesaid belief. It was only in June 2008 that, in the case of Vandana Global Ltd., this Tribunal doubted correctness of the aforesaid decision and referred the issue to a Larger Bench. It was only in 2010 that the Larger Bench held against grant of CENVAT credit as capital goods on steel items used in fabrication of structural supports and civil foundation. Thus, during most part of the dispute, the appellant had good reason to maintain the aforesaid belief. In the circumstances, no suppression of material fact with intent to claim undue benefit could be attributed to them. (e) In respect of steel items used in civil foundation and supporting structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi-III [2011 (270) E.L.T. 465 (S.C.)]. This decision of the apex court is squarely applicable to the facts admitted by the appellant in the reply to the show-cause notice. (c) From the impugned order, it is evident that the reply submitted by the party in 2010 and written submissions filed by them later on in 2012 were considered by the adjudicating authority and, hence, there can be no grievance of negation of natural justice. (d) If there was any conflict of decisions on the vital issue during the earlier part of the dispute, that conflict was resolved by the Tribunals Larger Bench in 2010 and, hence, the appellant could not have had any doubt since then. The particulars furnished by them along with monthly Returns were not enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphatically made by the appellant is that none of the steel items in question was used to fabricate supporting structures. This argument is diametrically opposed to the contention raised by his client before the adjudicating authority in the first reply to the show-cause notice. Prima facie, this conduct of the party is self-defeating. We have also carefully examined the decisions cited before us. The Tribunal s Larger Bench decision in Vandana Global Ltd. case is, prima facie, applicable to the facts stated by the appellant in their first reply to the show-cause notice and, consequently, CENVAT credit cannot be claimed by them on the steel items in question under Rule 2(a)(A). The decision of the apex court in Saraswathi Sugar Mills case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there were conflicting decisions on the MODVATability / CENVATability of the steel items during the earlier part of the period of dispute. On account of some of these decisions (Bhusan Steels and Strips Ltd., etc.), the appellant is said to have maintained the belief that they could claim CENVAT credit on steel items as capital goods . It is not in dispute that the conflict of decisions was resolved by the Larger Bench in the case of Vandana Global Ltd. as late as in 2010. The rest of the period of dispute is within the normal period of limitation. 6. The appellant has not pleaded any financial hardships. 7. On the reasoning already recorded, we are of the view that the appellant should pre-deposit the entire amount of CENVAT credit de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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