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2015 (8) TMI 391 - CESTAT NEW DELHI

2015 (8) TMI 391 - CESTAT NEW DELHI - TMI - Denial of CENVAT Credit - Capital goods - Held that:- Availment of Cenvat Credit in respect of Steel items, in question, and their use has been declared for ER-1 Return, it was the responsibility of Jurisdictional Assistant Officer to immediate verify their claim and as such it cannot be said that the appellant did not disclose the availment of Cenvat Credit in respect of the inputs in question of their use. Therefore, the appellant have a case in thei .....

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ant are manufacturer of Aluminium Flake/Powder, Atomised Aluminium Powder and Aluminium Paste chargeable to Central Excise Duty under various headings of the Central Excise Tariff Act, 1985. They availed Cenvat Credit of Excise Duty paid on inputs and capital goods. The period of dispute is from Oct.2007 to April 2009 as is clear from the Annexure to the Show Cause Notice. During this period the appellant took Cenvat Credit of ₹ 8,86,375/- in respect of MS Angles, Channels, Beams etc. whic .....

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g structure used mainly for making the machinery of vibration fee. Accordingly the Show Cause Notice dt.13.05.2010 was issued for recovery of this credit along with interest and imposition of penalty on the appellant. The Show Cause Notice was adjudicated by the Additional Commissioner vide order-in-original dt.21.11.2011 by which the above mentioned Cenvat Credit demand was confirmed along with interest and penalty of equal amount was imposed. The demand was confirmed by invoking longer limitat .....

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f tanks which are capital goods, that hence the same steel items would be eligible for Cenvat Credit as inputs, that just because the tanks being installed become fixed to earth, Cenvat Credit in respect of steel used for fabrication of tanks cannot be denied, that in any case, the Show Cause Notice dt. 13.05.10 seeking recovery on Cenvat Credit availed for the period from Oct. 07 to April 09 is time barred, as from para 2 of the Show Cause Notice itself, it is clear that the appellant had decla .....

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indings of the Commissioner (Appeals) and drawing attention to para 5.2 of the order-in-appeal, he pleaded that the appellant in course of proceedings before the Additional Commissioner did not produce any fact in support of their claim regarding use of the steel items for fabrication of capital goods or parts thereof, that no Certificate of the Chartered Engineer was submitted giving the drawings and designs of the capital goods, name and description of the capital goods manufactured and the qu .....

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have been correctly taken is on him, that in this case no records have been maintained by the appellant and hence the Commissioner (Appeals) has correctly upheld the denial of Cenvat Credit. 5. I have considered the submissions from both the sides and perused the records. The appellants claim is that they are eligible for Cenvat Credit in respect of steel items, in question, as the same have been used by them for fabrication on capital goods/parts of capital goods namely tanks and accordingly th .....

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ara 2 of the Show Cause Notice is reproduced below:- On scrutiny of the said return filed by the notice, appeared to reveal that the Notice had availed Cenvat Credit on the Structural items like Angle, Channel, Beam etc. mostly falling under Chapter 72 of the Central Excise Tariff Act, 1985, and used by them in the manufacture of parts of capital goods in the factory of production, as detailed in Annexure A enclosed to this notice. Besides they had also availed Cenvat Credit on other goods viz. .....

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it appears that various structural steel items as covered in Annexure-A have not been used in manufacture of capital goods as stated by the notice, on the contrary these items appear to have been used either in manufacture of supporting structures or for erection of the factory shed. (b) The items covered in Annexure A on which the notice have been taken Cenvat Credit cannot be treated as input as said items do not appear to be covered within the ambit of definition of inputs which as per Rule .....

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el, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service. As all the items covered in Annexure-A have not been used in or in relation to the final products as explained in para 2(a) of this notice, said items do not appear to be cover .....

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