TMI Blog2017 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... al Goods. The appellant had filed Annexure-A to the reply to show cause, wherein they have explained item wise usage whether the same has been used in fabrication of boiler and Millhouse or boiler or any other machinery or its part in the factory of production. The said explanation usage duly filed by, under certificate of the head of technical department of the appellant, has not been found to be untrue by the courts below - further, the definition of inputs in Rule-2 (k) read with Explanation-2 provides input includes goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Thus, in view of the specific provision for allowing Cenvat credit on inputs either used as inputs directly or indirec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty (Rs.) 1. 85-CE/APPL/MRT-II/2009 dt. 08.06.2009 34/Addl.Commr./M-II/09 dt. 27.03.2009 January-06 to June-06 27,94,974/- 2,00,000/- 2. 86-CE/APPL/MRT-II/2009 dt. 08.06.2009 28/Addl.Commr./M-II/09 dt. 26.03.2009 January-07 to Mar-07 18,39,816/- 2,00,000/- Vide two different show cause notices, the revenue objected to taking of Cenvat credit on the aforementioned items on the ground that during scrutiny of ER1 return along with RG23C part-II (Entry Book of duty credit on Capital Goods) and RG-23A part-II (Entry Book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants had not produced any evidence that out of those materials of Chapter 72 of CETA, they had manufactured capital goods. It was further observed that, had the appellant manufactured capital goods out of the aforementioned materials, then in terms of Rule 12 of the Central Excise Rules, 2002, it should have been reflected in the monthly ER-1 returns filed by the appellant. Being aggrieved, the appellant is before this Tribunal. 4. The learned Counsel for the appellant Mr. Aalok Arora says that the allegation of concealment/suppression in the show cause notice is non-existent, which is evident from the plain reading of the show cause notice, which states-whereas during the course of scrutiny of ER-1 returns along with the RG23C part-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f factory shed, building or laying of foundation or making of structures for support of capital goods, cannot be held to be retrospective. This has been held in the case of Ultratech Cement Ltd Vs CCE ST reported at 2017-TIOL-91-CESTAT-Delhi . Accordingly, the learned Counsel prays for allowing the appeal. 6. The learned A.R. for revenue relies on the impugned order. 7. Having considered the rival contentions, I find that the appellant had lead evidence before the Courts below that the items in question like Welding Electrodes, MS electrodes, MS plate, Shape and Section etc have been utilised for fabrication of mostly Capital Goods. The appellant had filed Annexure-A to the reply to show cause, wherein they have explained item wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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