TMI Blog2017 (7) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned SCNs alleged that the appellants have wrongly availed Cenvat credit on MS sheets, angles, MS plates, channels etc., on the grounds that they are structural materials used in construction, no further illumination is extant in those notices to support such allegation. Nor is there any whisper in any of the notices, as to the exact manner of usage that these disputed items had been put to use by the appellants - when the original SCNs themselves did not in the first place refer to any supporting evidence or corroboration of the allegations therein, after as many as thirteen long years, the onus is now being put on the appellants, that the latter are unable to produce the documents. It was for the Department to have clearly substantiated their allegation with reasoning and evidence, and not the other way around. Appeal allowed - decided in favor of appellant. - E/41751-41752/2013 - 40768-40769/2017 - Dated:- 29-3-2017 - Shri Madhu Mohan Damodhar, Technical Member Shri S. Muthu Venkataraman, Advocate for the appellants Shri S. Govindarajan, AC (AR) for the Respondent. ORDER The issued involved in these appeals relate to dispute on availment of credit on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in view of almost 12 years which have lapsed. He also submits that the rejection of their appeals in the first round by the then Commissioner (Appeals) and even subsequently in the impugned order relied upon the ratio of the LB decision of the Tribunal in the case of Vandana Global Ltd. (supra). He further submits that it is not the case that they had not submitted returns regularly and for that reason department cannot, after a gap of five years in 2008, make allegations about that they had suppressed the information and hence invoke larger period of limitation. 3. On the other hand Id. AR supports the adjudication. also refers to Interim Order of this Bench No.204-205/2015 dated 26.10.2015. 4. Heard both sides and gone through the facts of the case. The Interim Order dated 26.10.2015 had noted that after the decision in the case of Vandana Global Ltd. (supra) severe other judgments have come up laying down the principles of law in respect of use channels and angles used in the structures to enjoy Cenvat credit. The relevant part of the order is reproduced below:- 2. The adjudicating authority should note that after the decision in Vandana Global Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Appellant is directed to file an application before the adjudicating authority to fix the date for examination of the material as directed above. On such application, the authority shall fix the date and do the exercise directed above. 6. Report should reach Tribunal on 4 th March, 2016. 7. Call on 4 th March, 2016. 5.1 It is seen that the department has responded vide report dated 04.03.2016 and 21.03.2017, interalia enclosing the visit note dated 03.03.2016. On going through these documents it is gleaned that the department's main argument even now is that the tax payer has not provided documents for verification, as the same records are not traceable and that only some documents have been submitted. Para-4 of the Visit Note is reproduced as under:- 4. During the course of verification on 01.03.2016 02.03.2016, the officer observed that M/s. EID Parry India Limited had submitted the following documents only viz. (a) Extract of Cenvat Registers relating to Credit availed in respect of impugned items as mentioned in the Show Cause Notice for the period from 08/2008 to 09/2007 in respect of Pugalur Factory and that they have not given the Cenvat Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated 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 legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case. 5.4 The ratio of Vandana Global Ltd, has also been distinguished by the Hon'ble High Court of Madras, which is the jurisdictional Court of this Tribunal in the cases of M/s. Thiru Arooran Sugars Vs. CCE, Trichy - 2015-TIOL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely. 15. We find that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur v. Rajasthan Spinning Weaving Mills Ltd., 2010 (255) E.L.T. 481 (S.C.), wherein the Hon'ble Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore v. Jawahar Mills Ltd., 2001 (132) E.L.T. 3 (S.C.), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the user test to the case in hand, we find that the structural steel items have been used for the fabrication of support structures for capital goods. The appellants have argued that the various capital goods, such as, kiln, material handling conveyor system, furnace, etc. cannot be suspended in mid-air. They will need to be suitably supported to facilitate smooth functioning of such machines. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had dropped the SCNs. On appeal, the Commissioner (Appeals), following the ratio of Tribunal's LB decision in Vandana Global (supra) allowed the appeal filed by the Department, In the first round of appeal before this Tribunal, in the Final Order No.34-35/2011 dated 10.11.2011, the matter was remanded for fresh examination on the grounds, inter-alia that the lower appellate authority has not examined the contentions raised by the appellants that they have used the impugned goods for fabricating parts and components of machinery and capital goods. In this second round of appeals before this forum, an Interim Order dated 26.10.2015 had been passed by the Tribunal for mutual examination of the goods in dispute along with connected documents/evidences thereof. However, this exercise has admittedly not made any headway, as the appellants could not trace most of the records. 7.4 Therefore, I find that when the original SCNs themselves did not in the first place refer to any supporting evidence or corroboration of the allegations therein, after as many as thirteen long years, the onus is now being put on the appellants, that the latter are unable to produce the documents. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
