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2015 (4) TMI 240 - CESTAT AHMEDABAD

2015 (4) TMI 240 - CESTAT AHMEDABAD - TMI - Denial of CENVAT Credit - Suppression of facts - Invocation of extended period of limitation - Held that:- There was a declaration filed by the assessee that the impugned capital goods would not be used exclusively in the production of final product, which was exempted from payment of whole excise duty leviable thereon. This was a statutory declaration filed by the assessee under the then Rule 57T of the erstwhile Central Excise Rules 1944. But, the fa .....

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ssee. - Appeal No. E/1070/2010, Appeal No.E/1182/2010 - Order No. A/10282-10283/2015 - Dated:- 27-3-2015 - Hon ble Mr. P.K. Das, Member (Judicial),J. For the Petitioner : Shri J.C. Patel, Advocate For the Respondent : Dr. J. Nagori, Addl.Commr.(Authorised Representative) ORDER Per: P.K. Das 1. These appeals are arising out of a common order and therefore, both are taken up together for disposal. 2. The relevant facts of the case, in brief, are that the assessee is engaged in the manufacture of P .....

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assessee availed the CENVAT Credit on the capital goods, which were received and utilized during the month of May 1997 and May 1998. The credit was taken on 17.03.1999. 3. A show cause notice dt.27.02.2004 was issued by the Additional Commissioner of Central Excise & Customs, Daman, proposing to deny the MODVAT Credit on capital goods amounting to ₹ 38,57,045.00 wrongly availed and utilized by them and recovered under Rule 57 U (2) and of Central Excise Rules 1944 (present Rule 12 of C .....

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n Desai, Chief Manager of the assessee company. By the impugned order, the Commissioner (Appeals) dismissed the appeal filed by the assessee and allowed the appeal filed by Shri Nalin Desai. Hence, both the assessee and the Revenue filed these appeals before the Tribunal. 4. Learned Advocate appearing on behalf of the assessee and its Chief Manager submits that the Commissioner (Appeals) passed the order, following the decision of the Larger Bench of the Tribunal in the case of Spenta Internatio .....

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ecision would not be applicable in the case of availment of CENVAT Credit on the basis of conditional notification. He relied upon the following decisions:- a) CCE Chandigarh Vs S.T. Cottex Exports Pvt.Ltd. 2011 (268) ELT 318 (P&H) b) Oswal Woolen Mills Ltd Vs CCE Ludhiana 2012 (284) ELT 240 (Tri-Del) c) CCE Madurai Vs Eastman Spinning Mills Pvt.Ltd. 2011 (271) ELT 256 (Tri-Che.) d) CCE Bangalore Vs Kailash Auto Builders Ltd 2012 (280) ELT 49 (Kar.) 5. He also contested the demand on the gro .....

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oyee of the assessee company. He has no role in the alleged irregularity. It is submitted that during the relevant period, there was confusion of the eligibility of the MODVAT Credit and therefore, the Commissioner (Appeals) has rightly set aside the penalty. It is also submitted that the goods were also not available for confiscation and therefore, penalty under Rule 209A of erstwhile Rules, 1944 cannot be invoked. 7. On the other hand, the learned Authorised Representative for the Revenue subm .....

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Credit, while the penalty was set aside. He further submits that the case laws relied upon by the learned Advocate would not be applicable in the present case. It is submitted that the case of S.T. Cottex Exports Pvt.Ltd (supra), Oswal Woolen Mills Ltd (supra), Eastman Spinning Mills Pvt.Ltd (supra) are related to Notification No.29/2004 in respect of eligibility concessional rate of duty. The decision of Hon ble Karnataka High Court in the case of CCE Vs Kailash Auto Builders Ltd 2012 (280) EL .....

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e assessee are not applicable in the present case. The appeal filed by the Revenue, it is submitted that there is no requirement of confiscation of goods for imposition of penalty under Rule 209A of erstwhile Rules. 9. After hearing both the sides and on perusal of the records, I find that the assessee received the capital goods in the factory premises on 12.05.1997 and 12.05.1998. They had utilized the imported capital goods for manufacturing of the final product which was exempted from duty un .....

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dit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of the goods or the date of utilization of eligibility 50% credit. The Larger Bench answered the reference by holding that the CENVAT Credit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of the capital goods. The relevant portion of the decision of Larger Bench in the case of Spenta International Ltd (supra) is reproduce .....

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been taken, were not used for manufacture of dutiable goods on the date of receipt in the factory, capital goods credit is not available on such machinery. 11. The Tribunal in the case of M/s Aneri Construction Ltd (supra), following the decision of the Larger Bench, allowed the appeal filed by the Revenue. In that case, the assessee received the duty paid Air Compressors in their factory premises on 05.05.2005 and used for providing output service Commercial and Industrial Construction Service .....

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ely applicable. 12. Learned Advocate contended that the Notification No.4/1997-CE is conditional one as the benefit of Nil rate of duty would be applicable, if no credit of the duty paid on the inputs used in the manufacture of such goods have been availed by the manufacturer under Rule 57A of Central Excise Rules 1944. He strongly relied upon the decision of Hon ble High Court in the case of S.T. Cottex Exports Pvt.Ltd (supra). In that case, by virtue of Notification No.29/2004-CE, optional 4% .....

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goods in the manufacture of both the exempted and dutiable finished goods. So, none of the case laws is supporting the contention of the learned Advocate. 13. The Learned Advocate also submitted that the entire demand is barred by limitation. In this context, it is contended that there is divergent view on the issue of eligibility of MODVAT Credit of capital goods which was decided by the Larger Bench of the Tribunal. On perusal of the impugned order, I find that there was a declaration filed b .....

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