TMI Blog2016 (6) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... documents evidencing installations etc. to show beyond the receipt, consumption and inventory of such goods (MS items) as mandatorily required under Rule 9(5) of the CCR , 2004. Appellant has not taken care to give details of the items which are of general use for which the revenue should not suffer, and at the same time the appellant also should not suffer for not furnishing certain details which are required by the revenue - Decided in favor of assessee by way of remand. - Appeal Nos. E/40258/2015, E/40358/2015 (by assessee), E/40295/2015 (by Department) - Final Order No. 40872-40874/2016 - Dated:- 2-6-2016 - Shri P. K. Choudhary, Judicial Member For the Appellant : Shri M.A. Mudimannan, Advocate For the Respondent : Shri L. Paneerselvam, AC (AR) ORDER All these three appeals are arising out of a common Order-in-Appeal dt. 10.11.2014 passed by the Commissioner of Central Excise (Appeals-II), Chennai and hence they are taken up together for disposal. 2. The brief facts of the case are that appellants are manufacturers of TMT Bars, CTD Bars and M.S. Rounds, M.S. Ingots etc. falling under CETA'1985. They are availing cenvat credit on inputs and capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 2000/- under Rule 25 of CCR. The assessee is in appeal against above rejection in Appeal E/40258/2015. The summary of facts above is tabulated as under :- S.No. Appeal No. OIO No./dt. SCN No./ dt. Amount (Rs.) Total Amt. (Duty Penalty) in dispute Period 1. E/40358/ 2015 [by assessee against capital goods credit denial] E/40295/ 2015 [by Revenue against inputs credit relief] 1/2013 dt. 31.1.13 47/11 dt. 4.10. 2011 Inputs: ₹ 10,49,211* Capital Goods: 3,11,335 [* Allowed by Com (A)] Duty: ₹ 13,60,546 Penalty: ₹ 3,11,335 (u/s 11AC) Oct 2006 to May 2011 2. E/40258/ 2015 [by assessee against capital goods credit denial] 15/2014 dt. 3.3.14 C.No.IV/09/15/2013 dt. 12.3. 2013 Inputs: ₹ 1,98,118/-* Capital Goods: ₹ 14,193 [* Allowed by Com (A)] Duty: ₹ 14,193/- Penalty: ₹ 2000 (u/r 25) March 2012 to Dec 2012 There is no appeal filed by Revenue against allowing input credit of ₹ 1,98,118/- by Commissioner (Appeals). 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.16/2009-CE (NT) dt. 7.7.2009 and also filed copy of extract of CCR 2004 and drew my attention to Rule 2(k) and Explanation 2 thereto. 4.3 Ld. counsel also submits that the Chartered Engineer has thoroughly examined the nexus between the impugned goods used as inputs and final products and thereafter only issued the certificate. He relied on Tribunal's decision [para-4] in Shree Narmada Khand Udyog Sahakari Mandli Ltd. Vs CCE Surat 2015 (329) ELT 820 (Tri. Ahmd.) to submit that when there is no contrary evidence produced by Revenue against the C.E.'s certificate, it is not open to question the C.E certificate obtained by them. In view of submissions made, he pleaded that assessee's appeals may be allowed and Revenue appeal may be rejected. 5. Shri L. Paneerselvam, A.C, Ld. A.R appearing on behalf of Revenue submits that in the statement of facts at page 4 of the appeal paper book, the appellant-assessee themselves have admitted having used channels, beams, angles etc. to set up the furnace plant platform. He further submits that the same items which are shown as raw material are also claimed as capital goods. He drew my attention to page 51, 52 53 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence to prove that the impugned inputs had been specifically used in the furnace, (vii) that the same objection that has been raised in the notice has been recorded by the respondent in the impugned order with no satisfactory finding based on verification of facts, (viii) that merely levelling an allegation based on presumption without actual verification , will not help the case of the respondent to deny credit to the appellant, (ix) that on the other hand I am inclined to accept the Chartered Engineer s certificate produced by the appellant in their defence to prove that the impugned inputs have been used in the furnace and consumed in due course, (x) that consequently, I take the stand that credit on the impugned inputs is allowable in terms of Rule 2(k) of CCR , 2004 , since the consumables used inside the furnace have a definite nexus with the manufacturing activity of the appellant. The contention of the revenue in their grounds is that there is a failure on the part of the Commissioner (Appeals) to consider the allegations in the show cause notice in the right perspective; (i) that even in the Order-In-Original, vide para 6 (iii), the assessee themselves subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods /sub-assemblies of capital goods in the ER-1 filed during the relevant period. When the appellant was aware that such goods, on which credit was being taken, were items of general use , they were expected to maintain proper records like issue slip, records showing details of various capital goods / machinery items fabricated during the relevant period , quantity of material issued for fabrication , quantity of scrap generated , documents evidencing installations etc. to show beyond the receipt , consumption and inventory of such goods (MS items) as mandatorily required under Rule 9(5) of the CCR , 2004. 9. I find that the appellant has not taken care to give details of the items which are of general use for which the revenue should not suffer, and at the same time the appellant also should not suffer for not furnishing certain details which are required by the revenue. Both the sides have relied on case laws and other submissions which are not directly on their point. Neither the revenue nor the appellant has been able to demonstrate as to how the case laws would make them in-eligible or eligible for credit. The case laws are instances when facts were not under doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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