TMI Blog2015 (6) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for supporting erection of plant and machinery. Further, I find that show cause notice has been issued on the basis of decision of Tribunal's decision in the case of Vandana Global (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)) to say that Cenvat credit on these items is not available. As during the impugned period availment of Cenvat credit on the items in question was in dispute as there were contrary decision of this Tribunal. Therefore, this Tribunal held in such a situation, extended period of limitation is not invokable in the case of Jindal Steel & Power (2010 (10) TMI 329 - CESTAT, NEW DELHI) and Lloyds Metal (2014 (8) TMI 913 - CESTAT MUMBAI) and Premier Iron and Metal Industries (2011 (6) TMI 685 - CESTAT MUMBAI). Extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2007 to 15.2.09. The unit of the appellant was searched and in the course of scrutiny of records, it was found that the appellant has taken Cenvat credit on items mentioned hereinabove in para '1' which are neither capital goods nor the inputs. Therefore, a show cause notice was issued to the appellant to deny the Cenvat credit on these items. Adjudication took place. Cenvat credit was denied. Therefore, duty of ₹ 40 ,14,364 /- was demanded along with interest and equivalent amount of penalty was also imposed. Aggrieved from the said order, appellant is before me. 3. Learned Counsel for the appellant submits that the items in question were used by the appellant as capital goods. As without support of these items, machiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further submits that as the appellant is located in Jammu and availing the benefit of notification No. 56/2002 wherein whatever the duty appellant is paying he is entitled to refund of the same. Therefore, he submits that if they have not availed the Cenvat credit, whatever they paid more duty and they are entitled to take refund of the same. In that situation, it is the case of revenue neutrality. In that case, suppression cannot be alleged. In these circumstances, he prayed that impugned order be set aside. Appeal be allowed with consequential relief. 4. On the other hand, learned AR opposed the contention of the learned Counsel and submits that appellant has not explained the usage of all these items before the lower authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coa butter /powder could not have been manufactured by us. They have significant role to play in the mainstream manufacturing process of finished goods and without the use of which finished product will never come into being. 7. Further more, the usage test can be examined at any time. During the course of hearing, learned counsel of the appellant produced certain pictures obtained from the website of the appellant to show the usage of the items in question. The photographs shown by the learned counsel clearly explained the usage of the items in running the machines for manufacturing the final product. Therefore, the appellant has passed the usage test, therefore the appellant is entitled to avail Cenvat credit on the disputed items ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
