TMI Blog2019 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of amended notification - there were a widespread confusions in the trade regarding modality to be adopted for the reversal of the credit. Even if it is assumed that the appellant has removed capital goods, although the same is being contested. There has been evidence of series of communication regarding on the issue of reversal of Cenvat Credit between, the department and the appellant as it is evident from the various communications exchanged between them which is manifested from the letters dated 23.09.2013, 22.01.2014, 12.02.2014, 19.05.2014, 09.12.2014, 29.12.2014, 06.02.2015, 09.04.2015, 11.05.2015. 09.10.2015 and 20.11.2015 - the extended period of limitation for raising the demand is not available with the department. The impugned order is not sustainable both on merits and limitation - appeal allowed - decided in favor of appellant. - Excise Appeal No. 51493 of 2018-EX[DB] - Final Order No: 50771/2019 - Dated:- 5-3-2019 - Shri Bijay Kumar, Member (Technical) And Smt. Rachna Gupta, Member (Judicial) Shri Amit Jain, Advocate for the appellant Shri P Juneja, Authorized Representative for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing rule 3(5A) of credit Rules as existing during the relevant period. A bare perusal of the said provision reveals that the same can be invoked only when (a) Cenvat Credit is taken on capital goods (b) such capital goods are removed after being used either as capital goods or as waste and scrap. Ld. Advocate further contended the impugned order is not sustainable on the following grounds; (i) That the appellant had been contesting the demand from the very beginning of the present proceedings as scrap material in question pertained to the goods which were inputs and consumable in nature which were used for different purposes other than plant and machinery (capital goods) which is also evident from the appellant‟s reply to audit objection by letter dated 02/05/13 followed by the subsequent communication dated 12/02/2014, 29/12/2014 and 11/05/2014, stating as under: S No. Description of scrap material Nature of goods forming part of scrap, being inputs and consumable. 1 Waste/scrap Fire Bricks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grasim Cement vs. CCE, 2015(12) TMI 1556-CESTAT NEW DELHI Budhewal Co-op. Sugar Mills Pvt. Ltd. vs. CCE, 2013 (289) ELT 392 (Tri.-Del.) Jamma Auto Industries Ltd. vs CCE, Final Order No. 51079/2018 dated 16.03.2018. (ii) That no Cenvat Credit was availed on scrap of MS Steel and Cement, as those were used in the construction activities, which was subsequently excluded from the definition of inputs, under Explanation 2, Rule 2(k) of the Credit Rules with effect from 07/07/2009 and to support of their assertion, the verification report and chartered accountant certificate were also produced before the Adjudicating Authority. (iii) That the Rule 3(5A) is applicable only in case where capital goods have been cleared as waste and scrap, however, in the case at hand the waste and scrap cleared was not in the category of capital goods‟. Further also the Department has failed to specify that the old machineries that were used capital goods and were sold as scrap. In addition to that the Department had also not provided the classification of such scraps before raising the demand, which otherwise was required to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment could not have raised the demand for period prior to 1/03/2013 which is supported by the following case laws; Eternit Everest Ltd. vs. Union of India, 1997 (89) ELT 28 (Mad.) as maintained by the Hon‟ble Supreme Court in Union of India vs. Eternit Everest Ltd. 2002 (141) ELT A 285(SC). Pushpaman Forgings vs. CCE, 2002 (149) ELT 490( Tri.-Mumbai) as maintained by the Hon‟ble Supreme Court in Commissioner vs. Pushpaman Forgings, 2003 (153) ELT A 89(SC). Kluber Lubrication India Pvt. Ltd. vs. CCE, 2017-TIOL-2059-CESTAT-BANG. Heidelberg Cement Ltd. vs. CCE, 2018-TIOL-712-CESTAT-BANG CCE vs. Larsen Toubro Ltd., 2015 (39) STR 913 (SC). (vi) That the quantification of demand was also incorrect on the ground of taking rate duty applicable on basic fire bricks, to normal fire bricks also, and also that for the removal scrap the rate has been taken on assumption basis considering highest purchase price than the actual purchase price of the input goods. (vii) That the extended period of limitation is not available in this case as the issue emanated from au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 09.09.2004 The erstwhile Credit Rules did not contain any provision dealing with payment of amount when used capital goods are removed as waste and scrap 10.09.2004 to 15.05.2005 Until 15.05.2005, even the credit Rules, 2004 did not contain any provisions dealing with payment of amount when used capital goods are removed as waste and scrap. 16.05.2005 to 16.03.2012 Rule 3(5A) provided for payment of amount equal to the duty leviable on transaction value upon removal of capital goods as waste and scrap. 17.03.2012 to 26.09.2013 Rule3(5A) was amended to provide for payment of amount equal to Cenvat Credit taken on such capital goods as reduced by the percentage points calculated by straight line method @2.5 % for each quarter of a year. 27.09.2013 Rule 3(5A) was again amended to restore the previous position of payment of amount based on transaction value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully gone through the order passed by the . Tribunal and in fact, the Tribunal has upheld the contention of the Department so long as CENVAT credit has been claimed in respect of the impugned goods. The only issue which is bothering the Department is imposition of penalty. 6 The Division Bench of Gujarat High Court in the case of. Commissioner v. Dynamic Industries Ltd., reported in 2014 (307) E.L.T. 15 (Guj.) in paragraph 12 has held as under : Accordingly, the substantial question of law raised in respect of 12. the following three categories of service ie., (i) Customs House Agents Services, (ii) Shipping Agents and Container Services and (iii) Services of Overseas Commission is answered partly in favour of the assessee so far as aforesaid category nos. (i) and (ii) are concerned. Insofar as category No. (iii) ie., services of Overseas Commission, is concerned, the same is answered in favour of the Revenue and against the assessee. So far as present appeal is concerned, after extending the period of limitation under the proviso to Sec. 11 A and 11 AB of the Act, the Show Cause Notice is issued by the Joint commissioner, Central Excise, upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant. 8. Once full facts were disclosed, the normal period of limitation would be one year, whereas the proceedings are initiated after the expiry of a period of one year. Therefore, we do not find that the Tribunal has committed any error in observing that the demand was barred by limitation. 9 In the aforesaid case also, as facts were fully disclosed and there . was no suppression, it was held by the Division Bench that extended period of limitation is not invocable. A similar view has been taken in the following cases : Cosmic Dye Chemicals v CCE reported in 1995 (75) E.L.T. 721 (S.C.); Simplex Infrastructures Ltd. v CST reported in 2016 (42) S.T.R. 634 (Kar.); Gopal Zarda Udyog v CCE reported in 2005 (188) E.L.T. 251 (S.C.); Apex electricals Pvt. Ltd. v UQI reported in 1992 (61) E.L.T. 413 (Guj.); Unique Resin Industries v CCE reported in 1995 (75) E.L.T. 861 (T); CCE v Chemphar Drugs and Liniments reported in 1989 (40) E.L.T. 276 (S.C.); Padmini Products v CCE reported in 1989 (43) E.L.T. 195 (S.C.); Pushpam Pharmaceuticals Co. v CCE reported in 1995 (78) E.L.T. 401 (S.C.); Anand Nishikawa Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
