TMI Blog2022 (1) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Learned Counsel for the assessee that it may not be required for the Chartered Accountant to spell out the said details. However, it is the duty on the part of the assessee to produce documents to show that the certificate has been issued upon verification of all the details. This has not been done by the assessee as there is no record referred to or relied on by the tribunal which corroborates the certificate issued by the Chartered Accountant. Thus, it is clear that the Chartered Accountant certificate was referred to and relied upon for the first time before the tribunal. In such circumstances, the appropriate course that the tribunal could have been adopted was to remand the matter to the adjudicating authority to call upon the assessee to substantiate the Chartered Accountant certificate by producing relevant documents. However, the tribunal accepted the certificate in toto without noting the fact that there were no corroborative documents produced by the assessee to substantiate the contents of the certificate which admittedly did not certify that the Chartered Accountant had verified the details and there after issued the certificate. Certificate which was produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004 the respondent is eligible to avail Cenvat credit on the disputed items used in fabrication of storage tanks within the factory premises? (iv) Whether the Learned Tribunal before setting aside the order of the adjudicating authority on the basis of the certificate of Chartered Accountants dated 23.08.2016 ought to have considered that the said certificate was never produced before the adjudicating authority and the contents of the certificate remained unverified by the Department and as such the order passed by the Learned Tribunal is bad in law? (v) Whether the Learned Tribunal committed gross error in not appreciating that the Chartered Accountant s certificate is, at best, only corroborative evidence and the same cannot be sole or conclusive evidence particularly when there is no specific provision in the Rules for the acceptance of such certificates? 3. We have heard Mr. Vipul Kundalia, Mr. Tapan Bhanja, Ms S. Majumder and Mr. A.Roy for the Learned Counsel appearing for the appellant/revenue and Mr. Rahul Dhannuka and Mr. H. Choudhury, Learned Counsel appearing for the respondent/assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tribunal by the impugned order has allowed the appeal and set aside the order passed by the Commissioner. 7. The Learned Senior Standing Counsel for the revenue contended that the assessee had taken credit on capital goods under Tariff Heading no. 72 and 73 which was not admissible as per Rule 2 (k) read with Explanation 2 of the 2004 rules, since the capital goods were inputs of the assessee and these inputs used in the factory of the manufacture were to be treated as inputs and not as capital goods. Further it is submitted that the tribunal ought to have appreciated the fact that the capital goods on which the assessee availed Cenvat Credit do not fall within the definition of capital goods as they are neither goods falling under chapter 82, 85, 90 and Heading No. 68 of the First Schedule to the Central Excise Tariff Act, 1985, nor they are components, spares and accessories of such capital goods. Further it is submitted that the tribunal failed to clarify the utilisation of the items which was required to be done. Further the assessee had not maintained any record for use of the materials and their utilization. It is further submitted that the assessee is bound to show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal filed by the assessee. The Learned Counsel for the assessee submitted that the issue which is subject matter of this appeal is entirely factual and no questions of law arises for consideration in this appeal and in this regard reliance was placed upon the decision in the case of CCE, Bilaspur Vs. Singhal Enterprises Private Limited reported in 2018 (359) E.L.T.313 (Chhattisgarh) which decision was affirmed by the Hon ble Supreme Court in the decision reported in 2018 (360) E.L.T. A125. 10. We have heard the Learned Counsels for the parties and carefully perused the materials placed on record. On going through the order passed by the adjudicating authority dated 26.05.2016, we find that the observation made by the tribunal that the adjudicating authority glossed over the facts is incorrect. We say so because the adjudicating authority had taken into consideration the allegations in the show cause notice, the reply given by the assessee as well as the documents which they have relied on. The question which arose for consideration before the adjudicating authority was whether the assessee has correctly availed and utilised the amount of Cenvat Credit on the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion given by the Central Board of Excise and Customs, dated 08.07.2010 clarifying that the inputs have to be covered under the definition of input under the CENVAT Credit Rules 2004 and used in or integrally connected with the process of actual manufacture of the final product for admissibility of Cenvat credit. Therefore, the adjudicating authority concluded that the items on which the credit had been availed by assessee would not fall within the definition of capital goods. The adjudicating authority further noted that the assessee had not produced documents/evidence in support of their contentions and therefore confirmed the proposal in the show cause notice. 13. We have referred to the findings recorded by the adjudicating authority to support our conclusion that the tribunal committed an error in holding that the adjudicating authority had glossed over the submissions made by the assessee. The tribunal granted relief to the assessee, substantially based on the Chartered Accountant certificate. The question would be whether the Chartered Accountant certificate was issued upon verification of all the details. Whether the assessee had produced supportive documents based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate Limited (supra) in which the Chartered Accountant certificate was produced by the assessee with cost analysis which was produced after the adjudication order was passed which was taken into consideration by the Tribunal as fresh evidence and for examining the correctness, the matter was remanded back to the adjudicating authority. The assessee carried the matter to the Hon ble Supreme Court. It was held that the effect and implication of the contents of the certificates are required to be examined in the light of any other evidence that may be available on record or could be made available and the parties are required to be given an opportunity to adduce such other materials which may be produced by either of the parties in respect of the dispute between them so as to come to an appropriate finding on all the issues. In the said case, the Hon ble Supreme Court remanded the matter to the tribunal in stead of the adjudicating authority. 15. In Commissioner of Customs (Exports) Custom House Vs. BPL Limited 2010 SCC 3972 the substantial question of law framed for consideration was whether Chartered Accountant certificate alone can be accepted as evidence to rule out unju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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