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2016 (11) TMI 1226 - CESTAT NEW DELHI

2016 (11) TMI 1226 - CESTAT NEW DELHI - TMI - CENVAT credit - manufacture of ordinary Portland cement and pozzolana Portland cement falling under chapter 25 of the First Schedule to the Central Excise Tariff Act, 1985 - utilisation of cenvat credit which was wrongly availed by the appellant in the first year - Held that: - we set-aside the impugned order and remand the matter back on this issue to the adjudicating authority to decide the issue of utilisation of cenvat credit which was wrongly av .....

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dicating authority to verify the ECC code and address and utilisation of the credit and use of the goods. These factual aspects are not emerging from the impugned order. Hence, we set-aside the impugned order and remand the matter to the adjudicating authority on this issue who will decide denovo after providing an opportunity of hearing to the appellant as per law. - The next issue is regarding credit amounting to ₹ 11,90,941/- which was not admissible to the appellant since the iron .....

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- The next issue pertains to the total cenvat credit amounting to ₹ 3,95,10,036/-, out of which the adjudicating authority has already granted relief of ₹ 1,83,62,358/-. Thus, only dispute is regarding balance amount of ₹ 2,11,47,678/-. The adjudicating authority has confirmed this demand on the ground that these items have been used for supporting structure or civil foundation - Held that: - the issue regarding the admissibility of cenvat credit of ₹ 2,11,47,678/-, w .....

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it appears that the utilisation of subject goods is not clear, when it is so then we set-aside the impugned order and remand the matter on this issue also to the adjudicating authority. The adjudicating authority shall provide an opportunity of hearing to the appellant as per law. - The demand is not time barred as already discussed by the Commissioner (Appeals). - Appeal allowed by way of remand. - Excise Appeal No. 58606 of 2013 - Final Order No. 54971 / 2016 - Dated:- 9-11-2016 - Dr. .....

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the Central Excise Tariff Act, 1985. The appellant had availed cenvat credit on input, capital goods and input services. 3. The first dispute is pertaining to cenvat credit of ₹ 5,18,98,485/- on inputs and capital goods which was denied by the lower authority. Ld. Counsel for the appellant submits that substantial credit was taken out of total credit in the first year itself as per Rule 4(2)(a) of the Cenvat Credit Rules, 2004. The cenvat credit is allowed @ 50% in the first year and remai .....

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not upheld the action of the assessee in availing 100% of the credit in the initial year but have held that by the time the appeal was heard the initial financial year being over in addition to the 50% credit of the initial year, the assessee became entitled to the remaining 50% of the credit available in the following financial year and thus the assessee was entitled to 100% credit on the date of the appellate order. It is not the case of the Revenue that the credit wrongly availed by the asses .....

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the adjudicating authority to decide the issue of utilisation of cenvat credit which was wrongly availed by the appellant in the first year. On this issue including the issues of interest and penalty, the Commissioner shall provide an opportunity of hearing to the appellant as per law. Ld. Counsel has assured that full cooperation will be extended to the adjudicating authority. 4. The next issue is pertaining to the credit amounting to ₹ 2,73,450/- availed on invoices not issued in the na .....

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nnai); and also the ratio laid-down in the case of Larsen & Toubro Ltd. vs. Collector -1994 (72) ELT 948 (Tri.). 5. Considering the rival submissions and on perusal of the record, it appears that the issue needs fresh adjudication. Accordingly, we remand the matter back to the adjudicating authority to verify the ECC code and address and utilisation of the credit and use of the goods. These factual aspects are not emerging from the impugned order. Hence, we set-aside the impugned order and r .....

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ture of cage for PMCC (P), MCC, Panels, Grid Rotor Resistance etc. which are stated to be capital goods. The period is after 07.07.2009, when by introducing the amendment to the definition in Rule 2(k) of the Cenvat Credit Rules, 2004, the position has been changed and thereafter benefit is not admissible. During the course of arguments, ld. Counsel submits that the said explanation (amendment) is not applicable to the assessee s case as his case is falling under Rule 2(a)(A)(iii) of the Cenvat .....

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e the issue in denovo proceeding after providing an opportunity of hearing to the appellant. 7 The next issue pertains to the total cenvat credit amounting to ₹ 3,95,10,036/-, out of which the adjudicating authority has already granted relief of ₹ 1,83,62,358/-. Thus, only dispute is regarding balance amount of ₹ 2,11,47,678/-. The adjudicating authority has confirmed this demand on the ground that these items have been used for supporting structure or civil foundation. 7.1. Du .....

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ndment is applicable retrospectively but the said decision of the Tribunal was set-aside by the Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. vs. CCE&C 2015 (39) STR 726 (Guj.) where it was observed that- 8. Ld. Counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited vs. Commissioner of Central Excise, Raipur -2010 (253) ELT 440. We have carefully gone through the decision of the Larger Bench .....

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ed to be clarification of particular thing or goods and / or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legi .....

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