TMI Blog2023 (11) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... items - HELD THAT:- They are required for maintenance of boiler and furnaces without which finished goods cannot be manufactured, hence the Cenvat Credit on the same cannot be denied. Extended period of limitation - suppression of facts or not - HELD THAT:- In the present case, no evidence has been brought in by the Revenue to fortify their allegation of suppression on the part of the Appellant. The Appellant has filed their Monthly Returns properly declaring the Cenvat taken by them on various counts. The Tribunals have been consistently holding that when the issue is that of interpretation, suppression clause cannot be invoked against the assesse. Therefore, the assesse could be having bonafide belief that they are eligible for Cenvat Credit. Accordingly, the demand in respect of the extended period is required to be set aside on account of time bar also. Appeal allowed both on merits as well as on account of limitation also. - HON BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) And HON BLE MR. K. ANPAZHAKAN, MEMBER (TECHNICAL) Mr. Sourabh Bagaria Mr. Indranil Bnerjee, both Advocate for the Respondent Mr. P. K. Ghosh, Authorized Representative for the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for various capital equipment like Furnace Accessories, Crane Operating System, Cooling Tower etc. have been elaborately given. This Certificate has been issued by the Chartered Engineer after physical verification and site inspection of the factory premises and they have ascertained the quantity of each of the items used in various capital goods and then only they have issued the Certificate. 4. The Commissioner has held that the Capital Goods have been embedded and hence the Cenvat Credit cannot be allowed. He has also relied on the case law of Vandana Global Ltd. Vs. CCE, Raipur-2010 (253) ELT 440 (Tri-LB) to deny the Cenvat Credit. 5. The Learned Counsel submits that the issue is no more res integra. He cites the following case laws in support of their submissions that even if the capital goods are embedded, the Cenvat Credit cannot be denied:- (a) Triveni Engineering Industries Ltd. Vs. CCE-2000 (120) ELT-273 (SC) (b) Sirpur Paper Mills Ltd. 1998 (97) ELT-3(SC) 6. He relies on the following case Laws in respect of Cenvat taken on various MS items:- (i) CCE, Trichy Vs India Cements Ltd.-2004 (175) ELT-476 (Tri.-Chennai) (ii) Divi s Labrotari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Registration by incorporating the present name in place of the earlier name. They have submitted a copy of the Letter of Undertaking where they have clearly submitted that all the liabilities towards the Central Excise and Service Tax in respect of the earlier Company M/s Dutta Iron Steel Pvt. Ltd., the same would be borne and paid by the new Company M/s. Amit Metaliks Ltd. Therefore, he submits that as per the provisions of Rule 10 of Cenvat Credit Rules, 2004, they have fulfilled all the conditions. The earlier Company has transferred all the assets and liabilities including capital goods, within the factory premises to the present appellants. He relies on the case law of Apco Industries Ltd. Vs. CCE-2004 (177) ELT 647 and Solaris Bio- Chemicals Ltd. Vs. CCE-2005 (179) ELT-216 (Mumbai-CESTAT). 11. In view of the foregoing, he submits that the confirmed demand is required to be set aside on merits. 12. He further submits that the Department is in error in invoking the extended period to deny the Cenvat Credit. There is no dispute that the Appellants have been filing their Monthly Returns with the Department and were also subjected to various audits. All the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onents, spare parts and accessories thereof. The various decisions cited by the ld. Advocate and ld. Consultant for the appellantassessee confirm the eligibility to credit in respect of steel structure and various building materials and items such as Rebar coils, CTD bars, TOR Steel, Joists and Cement when used as structural support or in foundation of machineries etc. and therefore these citations are squarely applicable to the facts of their case. 7. We are not in a position to countenance the plea taken by ld. JDR appearing on behalf of the revenue. Respectfully following the ratio of the said decision cited supra and the discussion, we are of the considered opinion that the credit would be admissible on Rebar coils, CTD bars, TOR Steel, joists and cement. We, therefore, allow the appeal filed by the appellant-assessee. [Emphasis supplied] (ii) Divi s Labrotaries Ltd. Vs. Commr. of Central Excise, Visakhapatnam-2006 (196) ELT-285 (Tri.-Bang.) We have gone through the records of the case carefully. The items like angles, channels, beams, pipes, MS tubes, plane plates, flats, cable trays, SS sheets are used as parts of a Technological structures which sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnace and this plea was accepted by the Asstt. Commissioner and subsequently by the Commissioner (Appeals). Even in the grounds of appeal in the Revenue s appeal, this has not been disputed. The crane operating system and induction furnace falling under Chapter 84 are covered by the definition of capital goods and the items, in question, being parts and components of these capital goods are covered by the definition of capital goods. I, therefore, hold that the same are eligible for Cenvat credit. In view of this, there is no infirmity in the impugned order. The Revenue s appeal is dismissed. [Emphasis supplied] 15. So far as the refractory items are concerned, they are required for maintenance of boiler and furnaces without which finished goods cannot be manufactured, hence the Cenvat Credit on the same cannot be denied. 16. On the point raised by the Adjudicating Authority with regard to the old unit being taken over by the present Appellant is concerned, it is seen that the appellant has filed a letter for amending the name in the Central Excise Registration Certificate on 10/02/2009. They have also placed a copy of Undertaking stating that all the liabilities including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory, the manufacturer shall be allowed to transfer the Cenvat Credit lying unutilized in his accounts to such transferred, sold, merged, leased or amalgamated factory. (2) The transfer of the Cenvat Credit under sub-rule (1) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for the satisfaction of the Commissioner. A reading of the above rule shows that no prior permission from the competent authority is required before transfer of credit, which is the ground on which the show cause notice was issued, proposing denial of permission to transfer credit lying unutilized in the account of M/s. Bharat Starch Industries Ltd. The stock of inputs/capital goods has also been duly accounted for to the satisfaction of the Commissioner by M/s. Bharat Starch Industries Ltd. as is obvious from the fact that credit was permitted to be taken by M/s. Bharat Starch Industries Ltd. It appears ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
