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2017 (2) TMI 12 - CESTAT BANGALORE

2017 (2) TMI 12 - CESTAT BANGALORE - TMI - CENVAT credit on capital goods - Held that: - It is an undisputed fact that the said Vertical Storage Tanks are installed in the premises of the Customers and not in the premises of the manufacturer. As per the definition of Capital Goods under rule 2(a) of CCR, the said goods should be used in the factory of the manufacturer of the final products. - As regards the credit availed on Portable Cryogenic Vessels, I find that the said Vessels are used f .....

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-2017 - Shri S. S. Garg, Judicial Member For the Appellant : Mr. Narayana.M.A. Advocate For the Respondent : Mr. Pakshi Rajan, AR ORDER Per S. S. Garg The appellants have filed four appeals against the two impugned orders passed in Order-in-Appeal No.556 & 557 dated 25.10.2013 and Order-in-Appeal No.456 & 457/2013 dated 3.9.2012, vide which the Commissioner (A) has rejected the appeals of the appellant and upheld the four Orders-in-Original. Since the issue in all the four appeals is com .....

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tical cryogenic storage tanks, portable cryogenic vessels and their components falling under SH No.84198910 and 84818090 of the First Schedule to CETA, 1985. The Department observed that the appellant had availed irregular CENVAT credit of ₹ 4,37,699/- and ₹ 3,27,719/- for the period April 2011 to July 2011 and August 2011 to October 2011 respectively and an amount of ₹ 2,69,243/- and ₹ 4,11,895/- for the month of September 2010 and October 2010 to March 2011 respectively .....

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re in fact used as packing material and hence company was eligible for the credit of duty paid on the said goods. Thereafter the Assistant Commissioner passed orders-in-original denying the credit and ordered for recovery of the same along with interest and also imposed penalty. Being aggrieved by the said orders, the appellant filed four appeals before the Commissioner (A) and the Commissioner (A) vide two impugned orders dated 25.10.2013 and 3.9.2013 dismissed all the four appeals and hence, t .....

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luntarily disclosed the tax liability and also paid the tax thereon. Therefore, the company is eligible for the credit of duty paid on the storage tank as per the ratio laid down in the case of Ajay Industrial Corporation vs. CCE, Meerut: 2002 (147) ELT 786. He also submitted that the portable cryogenic vessel is used as a packing material for the manufacture of liquid oxygen. It is in fact in the nature of durable and returnable packing material belonging to the company and the company is eligi .....

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e Commissioner (A) in the impugned orders has considered all the submissions of the appellant and has held that the appellant have wrongly availed the CENVAT credit on capital goods. Here it is relevant to reproduce the observation of the learned Commissioner (A) in para 8 and 9 of his finding which is reproduced here: 8. I have carefully gone through the records of the case, the grounds of appeal and the submissions made at the time of personal hearing. I find that the issue pertains to availme .....

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the premises of the manufacturer. As per the definition of Capital Goods under rule 2(a) of CCR, the said goods should be used in the factory of the manufacturer of the final products. In the instant case, the goods are not installed and used in the factory of the manufacturer and hence, the credit availed is irregular. I do not agree with the contention of the Appellants that the said goods were used for the activity of providing storage facilities as defined under 65(102) of the Finance Act, 1 .....

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cision of Hon'ble Tribunal in the case of Ajoy Indl. Corporation Vs. CCE, Meerut. However, the said decision was in the context of Modvat credit under erstwhile Rule 57A of Central Excise Rules, 1944. Further, the issue therein pertained to availability of Modvat credit on inputs in respect of final products which were initially treated as exempted from payment of duty and in respect of which duty was demanded subsequently and paid. This is not at all the issue involved herein. Hence, the cr .....

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ted during, the relevant period upto 31.03.2011. Hence, they cannot be considered as inputs as argued by the Appellants in their replies to the show cause notices and in their grounds of appeal. For the period from 01 .04.2011 onwards, the said containers cannot be held to be 'inputs' as per the amended rule 2(k) of CCR as they are not used in the factory but for supply/ transportation of gases. The adjudicating authority has relied upon the decision of the Hon'ble Tribunal in the ma .....

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