TMI Blog2014 (6) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ds / other goods, and the receipt in and consumption thereof, there cannot be the denial of Cenvat Credit to the appellant. - Decision in the case of Jewel Brushes Pvt. Ltd. [2008 (4) TMI 644 - CESTAT, AHMEDABAD], Steelco Gujarat Ltd. [2010 (2) TMI 307 - GUJARAT HIGH COURT] and Vimal Enterprises [2005 (7) TMI 111 - HIGH COURT OF GUJARAT AT AHMEDABAD] followed - Credit allowed. As regards HTPE sheets, insulation packages, domestic (refractory) anchors etc. - Held that:- the items and the usage thereof which has been demonstrated before us, from the documents on records, clearly indicate that these items were consumed / used as components, spares or parts of the various machineries which were either fabricated and installed alongwith bought out items for setting up of the refinery. - Decision in the case of Essar Steel Ltd. [2008 (12) TMI 566 - CESTAT, AHMEDABAD] followed - Credit allowed. As regards credit in respect of consumables such as enamels, paints, polyester resins, electrodes and chemicals - Held that:- Appellant has been able to demonstrate before us and also canvassed before the adjudicating authority that these items were essential items without which factory cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reply dt. 03.09.2008 put forth reasonings for their eligibility to avail Cenvat Credit of duty paid on such items. The adjudicating authority called for the further evidences which were submitted. The adjudicating authority after scrutinizing the data submitted by the appellant, after following the due process of law, vide impugned order allowed Cenvat Credit of major amount but denied the Cenvat Credit of an amount of Rs.26,11,20,838/- as ineligible Cenvat Credit, demanded interest thereof and imposed a penalty under Rule 15(1) of the Cenvat Credit Rules, 2004; also demanded interest on an amount of Rs.39,02,938/- reversed by the appellant during the scrutiny of the records admitting that such credit is ineligible. Aggrieved by such an order, the appellant is before the Tribunal. 3. Ld. Counsel appearing on behalf of the appellant would submit that the Cenvat Credit which has been sought to be denied to the appellant is broken into five different categories by the adjudicating authority in the impugned order. It is his submission that he would submit the arguments in that order: (i) It is his submission that the adjudicating authority has confirmed an amount of Rs.20,61,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute as to the receipt of the duty paid goods and the usage thereof. It is his submission that the appellant has received the goods on which the Cenvat Credit was availed and the declaration was not filed due to inadvertence and also that during the period, the refinery was being set up. He would submit that the procedural conditions made be condoned as has been held by the High Court of Madras in the case of CCE Vs. Kothari Sugars Chemicals - 2009 (139) ELT A69 (Mad) and Kamakhya Steel Pvt. Ltd. Vs. CCE - 2000 (121) ELT 247 (T-LB). (iii) In respect of the denial of the Cenvat Credit of Rs. 6,68,773/- and Rs.2,34,351/-, it is his submission that the credit is sought to be denied on the ground that same was availed on original copy or extra copy of the invoices. He would submit that there being no dispute as to the receipt and consumption of the goods covered in the said duty paying documents, Cenvat Credit should be allowed even on original copy of the invoice or extra copy of the invoice. For this proposition, he would submit that the Hon ble High Court of Gujarat in the case of CCE Vs. Steelco Gujarat Ltd. - 2010 (255) ELT 518 and in the case of Vimal Enterprises Vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cocks). He would submit that they have given a detailed reasoning that all these items are used in the factory / refinery which is undisputed and they are part / components / spares of the machinery used in the refinery. He would then take us through the impugned order wherein the appellant had specifically mentioned the usage to these items. He would submit that on merits also, the appellant are eligible for availment of Cenvat Credit. (v) It is his submission that Cenvat Credit of Rs.94,00,484/- is sought to be denied on consumables such as enamels, paints, polyester resins, electrodes and chemicals which were used / consumed by the appellant during the installation / erection or setting up of the factory. He would submit that the paints and the chemicals which are used by the appellant were for preventing corrosion of the refinery plant which was being set up. He would submit that since the refinery took 10 long years for setting up, due to technical problems, they had to perforce maintain that portion of the refinery which was set up and was being interconnected with the other portion of the refinery. He would submit that the adjudicating authority has denied the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of an amount of Rs.38,74,887/-, it is his submission that the appellant did not file intimation regarding the receipt of the said goods in the factory premises, having not done so, they are not eligible to avail the Cenvat Credit on such items. (iii) As regards the Cenvat Credit of an amount of Rs.6,68,773/- and Rs.2,34,351/-, it is his submission that non-production of duplicate copy is incorrect and credit can be availed only on the documents as has been mandated for availment of Cenvat Credit which has been laid down by the Larger Bench of the Tribunal in the case of AVIS Electronics Pvt. Ltd. - 2000 (117) ELT 571 (Tri. - LB). (iv) As regards the Cenvat Credit of an amount of Rs.1,95,84,057/- and Rs.25,33,813/-, it is his submission that this amount represents an amount of Cenvat Credit wrongly availed by the appellant on goods not eligible for such credit in view of the definition clause and / or there usage being not in or in relation to manufacture of final products. It is his submission that the materials in respect of which Cenvat Credit has been availed are not capital goods and are also cannot be considered as components / parts of the capital goods. It is his su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as to the submissions made independently on the issues by both sides. (i) As regards the denial of Cenvat Credit of Rs.20,61,57,657/-, we find from the documents produced before us that the duty paying documents clearly indicate the name of EPC contractors i.e. Essar Projects Ltd. and as also the name and address of the appellant as a consignee. It is not disputed that the said capital goods / other goods which were received at the site of the appellant, were used in refinery and the documents indicated correct duty paying nature. We find strong force for contentions raised by the Ld. Counsel as to the ratio in the case of Jewel Brushes Pvt. Ltd. (supra) would straight away apply in the case in hand. Since there is no dispute as to the receipt, consumption and duty paid nature of the capital goods or other goods in setting up of the factory of the appellants, respectfully following the ratio laid down by the bench in the case of Jewel Brushes Pvt. Ltd., we set aside the demand of this amount and allow the appeal of the appellant. (ii) As regards the denial of Cenvat Credit of Rs.38,74,887/-, we find that the entire dispute is regarding the non-submission of intimation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of the various machineries which were either fabricated and installed alongwith bought out items for setting up of the refinery. In our view, the decision of the Tribunal in one of the appellants group company s case i.e. Essar Steel Ltd. - 2009 (245) ELT 727 is directly applicable. Respectfully following the same, we are of the view that the Cenvat Credit of these amounts cannot be denied to the appellant. (iv) As regards Cenvat Credit of Rs.94,00,484/- availed by the appellant which is sought to be denied is also incorrect in as much as, the appellant has been able to demonstrate before us and also canvassed before the adjudicating authority that these items were essential items without which factory could not be set up and needed for maintenance due to substantial time taken for setting up the entire refinery. Since it is undisputed that these items were used in the factory premises for maintaining of the plant and machinery, fabrication of machinery, not having the stock of the said items cannot be a ground for denial of the Cenvat Credit the appellant. To that extent, appellant is eligible for availment of Cenvat Credit of this amount. 8. Since we have disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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