TMI Blog2016 (3) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to our notice by ld. DR which requires the respondent to give list of goods on which credit is taken. The allegation relating to wilful mis-statement / suppression of acts is not sustainable and consequently extended period and mandatory penalty are not invocable. Allow the appeal by way of remand to the primary adjudicating authority for de novo adjudication with the following direction/observations -(i) Cenvat credit is not admissible in respect of the impugned goods, (ii) Extended period of 5 years and mandatory equal penalty are not attracted. and (iii) The de novo adjudication should therefore be confined to only normal period of one year. - Appeal No. E/55704/2014-EX. (SM) - Final Order No.50986/2016 - Dated:- 26-2-2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce as that clarification pertains to the definition of inputs which came into effect from 1.3.2011 and even thereunder such credit would not be allowed. Ld. DR cited the judgements of Allahabad High Court in the case of CCE, Ghaziabad Vs. Rathi Steel Power Ltd. - 2015 (321) ELT 200 (All.) and Bombay High Court in the case of Tigrania Metal Steel Industries P. Ltd. Vs. CCE - 2015 (326) ELT 650 (Bom.) 3. Ld. Advocate for the respondent stated that in the light of the fact that; {A}(i) The manufacture of the respondent s product required the very clean and controlled environment. (ii) Normal walls absorb moisture which generate bacteria and therefore these panels/doors are required to construct chambers inside which the quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, 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; Explanation 1.- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h speed diesel oil or motor spirit, commonly known as petrol; (B) any goods used for- (a). construction of a building or a civil structure or a part thereof; or (b). laying of foundation or making of structures for support of capital goods, except for the provision of any taxable service specified in sub-clauses (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of Section 65 of the Finance Act: (C)Capital goods except when used as parts or components in the manufacture of a final product; (D) motor vehicles; (E) any goods, such as food items, goods used in a guesthouse, residential colony, club or a recreation facility and clinical establishment, when such goods are used primarily for per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to avail Cenvat credit wrongly. Thus, the extended period of 5 years as provided under proviso to Section 11A(1) of the Central Excise Act, 1944 appears to be invokable for recovery of Cenvat credit so wrongly taken by them as this was noticed during the udit of the records of the notice. Moreover, by availing such inadmissible credit as detailed in foregoing paras the Noticee contravened the provisions of Rule 2 3 of Cenvat Credit Rules, 2004 thus, rendered themselves for penal action under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. It is not in dispute that the respondent had been submitting its monthly returns clearly showing availment of the impugned credit. Thus it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Vs. CCE, Chandigarh-I {2007 (216) ELT 17 (SC)}, the Supreme Court went to the extent of saying that any incorrect statement by itself cannot be equated with wilful mis-statement. Thus, I am of the view that the allegation relating to wilful mis-statement / suppression of acts is not sustainable and consequently extended period and mandatory penalty are not invocable. 6. In the light of the foregoing, I allow the appeal by way of remand to the primary adjudicating authority for de novo adjudication with the following direction/observations; (i) Cenvat credit is not admissible in respect of the impugned goods. (ii) Extended period of 5 years and mandatory equal penalty are not attracted. (iii) The de novo adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
