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2015 (8) TMI 145 - CESTAT NEW DELHI

2015 (8) TMI 145 - CESTAT NEW DELHI - TMI - Extended period of limitation - Denial of CENVAT Credit - Manufacture of final product - Receipt of the disputed goods, their duty paid nature and utilization within the factory premises have not been disputed by the authorities below - Held that:- upon verification of the detailed accounts maintained by the appellant, the Chartered Engineer has certified the quantum of usage of the disputed goods for the said intended purpose. The documents available .....

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known to the department way back in 2002, the show cause notice ought to have been issued within one year from the relevant date (i.e. taking of credit and furnishing of information by way of filing the ER-I return).

Since the show cause notice has been issued in 2008, covering the period from June, 2002 to January, 2006, and no specific findings have been recorded regarding the involvement of the appellant in any fraudulent activities concerning fraud, collusion, miss-appropriation .....

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in view of conflicting decisions, are genuine and justified - proceedings initiated by the Department for recovery of the cenvat amount is barred by limitation of time and, accordingly, the impugned order is set aside - Decided in favour of assessee. - Excise Appeal No. E/59987/2013 EX. [SM] - Final Order No. 51903/2015 - Dated:- 12-6-2015 - Hon ble Mr. S. K. Mohanty, Member (Judicial),J. For the Appellant : Ms. Surbhi Sinha, Advocate For the Respondent: Shri Devender Singh, DR ORDER Per: S. K. .....

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flats, Plates, joist etc., treating the same as input for manufacture of plant and machinery installed within the factory. Cenvat credit taken on the said goods had been denied by the Central Excise Department on the ground that the said goods cannot be considered as input, since were used in fabrication of the supporting structure of the capital goods, which cannot be considered as capital goods as such. The show cause proceedings initiated by the Central Excise Department culminated in the adj .....

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the definition of term input contained in Rule 2 (k) of the Cenvat Credit Rules, 2004. In explanation 2 appended to said definition, it has been explained that input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. According to the ld. Advocate, since the disputed goods are used for manufacture/erection of the capital goods, which are further used in the factory of the appellant for manufacture of the final products i.e. sugar and .....

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elies on the following decisions:- 1. Bajaj Hindustan Ltd. Vs. CCE, Lucknow reported in 2014 (313) ELT 563 (Tri.Del.) 2. LSR Speciality Oils Pvt. Ltd. vs. CCE, Belapur reported in 2014 (313) ELT 426 (Tri.Mum.) 3. CCE, Jaipur vs. Rajasthan Spinning Mills ltd. reported in 2010 (255) ELT 481 (SC) 4. CCE, Vishakapatanam-II vs. APP Mills Ltd. reported in 2011 TIOL 1378 - CESTAT-Bangalore 3. Ld. Advocate further submits that issuance of show cause notice beyond the period of one year from the relevant .....

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as per the proviso to section 11A cannot be invoked for confirmation of the duty demand. With regard to the submissions that the proceedings are barred by limitation of time, the ld. Advocate has relied on the decision of the Tribunal in the case of CCE, Raipur vs. Baldev Alloys Pvt.Ltd. reported in 2012 TIOL - 388 (CESTAT-Del.), CCE, Raipur vs. Orion Ferro Alloys Pvt. Ltd. reported in 2010 (259) ELT 84 (Tri.Del.) , CCE, Lucknow vs. D.S.C.L. Sugar 2012 (280) ELT 89 (Tri. Del.), Continental Foun .....

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ause notice issued within one year from the date of knowledge by central excise officials cannot be considered as time barred. 5. I have heard the ld. Counsel for both the sides and perused the records. 6. The period involved in the present case is from June, 2002 to January, 2006 and show cause notice has been issued on 15th February, 2008, seeking disallowance of cenvat credit on the ground that the disputed goods are not conforming to the definition of inputs, as these are used for manufactur .....

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tailed accounts maintained by the appellant, the Chartered Engineer has certified the quantum of usage of the disputed goods for the said intended purpose. The documents available in the case record prove beyond any shadow of doubt that the fact regarding taking of cenvat credit by the appellant on the disputed goods were known to the Department beforehand. Such fact is evident from the SCN, wherein the duty demand has been computed based on the records maintained by the appellant. In view of th .....

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06, and no specific findings have been recorded regarding the involvement of the appellant in any fraudulent activities concerning fraud, collusion, miss-appropriation etc. with intent to evade payment of duty, the proviso to section 11A, in my opinion, cannot be invoked, justifying issuance of show cause notice, beyond the limitation period of one year. Further, the issue regarding taking of cenvat credit on the disputed goods is contentious one, because there are divergent views by different B .....

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