2013 (4) TMI 409 - AT - Central Excise

Cenvat credit denied - paints and thinners - Held that - Paints and thinners undisputedly have been used for applying on the various machinery. The paint is specifically covered by the definition of input as given in Rule 2(k) of the Cenvat Credit Rules, 2004 and, therefore, the impugned order denying cenvat credit is not sustainable. Welding electrodes - Held that - The welding electrodes can be used either for fabrication of new machinery or its part or for repair and maintenance. While in the first case, the same would be eligible for cenvat credit as input in the second case the same would be eligible for cenvat credit in the case of Ambuja Cements Eastern Ltd., (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT ) and Hindustan Zinc Ltd. (2008 (7) TMI 55 - HIGH COURT RAJASTHAN) - impugned order denying the cenvat credit is not sustainable. H.R. Coil, M.S. Girder, G.C. Sheets, M.S. Channels, shape and section etc. - Held that - The appellant s plea with regard to evidence given in respect of use of these items has not been considered at all and simply a finding has been that these items are generally used for making of supporting structures for machinery and therefore would not be eligible for cenvat credit in view of the judgment of Vandana Global Ltd. vs. CCE, Raipur (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)). In cases, where the steel items, in question, have been used for fabrication of sugar mill machinery or its part, the same would be eligible for cenvat credit as input. Thus before rejecting the appellant s claim in this regard this evidence must be carefully examined for which this matter would have to be remanded to the original adjudicating authority.

Summary

Issues:
- Denial of cenvat credit on various items by the department.
- Adjudication by Assistant Commissioner and subsequent appeals before Commissioner (Appeals).
- Commissioner (Appeals) upholding denial of cenvat credit but setting aside the penalty.
- Appeals filed against Commissioner (Appeals) order.

Analysis:

1. Denial of Cenvat Credit:
- The appellant, a manufacturer of sugar chargeable to central excise duty, availed cenvat credit on inputs and capital goods, leading to a dispute from March 2008 to October 2008.
- The department issued eight separate show cause notices denying cenvat credit on various items, amounting to significant sums.
- Assistant Commissioner confirmed the denial of cenvat credit in each case, imposing penalties.

2. Adjudication and Appeals:
- Appeals were filed before the Commissioner (Appeals) against the Assistant Commissioner's orders.
- Commissioner (Appeals) upheld the denial of cenvat credit but set aside the penalties imposed.
- Eight appeals were subsequently filed against the Commissioner (Appeals) order.

3. Legal Arguments:
- The appellant argued that welding electrodes, paints, and thinners were used for repair and maintenance of capital goods, making them eligible for cenvat credit.
- They provided evidence of usage of various items in the fabrication of machinery, supported by store registers, issue slips, and certificates.
- The Commissioner (Appeals) did not consider the evidence presented by the appellant regarding the usage of items in the fabrication process.

4. Judgment and Analysis:
- The Tribunal found that paints and thinners, being covered by the definition of input, were eligible for cenvat credit.
- Regarding welding electrodes, the Tribunal held that they could be used for fabrication or repair and maintenance, making them eligible for credit based on legal precedents.
- The denial of cenvat credit on steel items used in fabrication was set aside, and the matter was remanded for reevaluation of evidence.
- The Tribunal emphasized that items used in fabrication of machinery or parts thereof were eligible for cenvat credit, and evidence provided by the appellant should be considered.

5. Conclusion:
- The Tribunal set aside the denial of cenvat credit on paints, thinners, welding electrodes, and steel items used in machinery fabrication.
- The case was remanded for a fresh decision on the eligibility of cenvat credit based on the evidence presented by the appellant.
- The importance of considering all evidence and legal precedents in determining cenvat credit eligibility was highlighted in the judgment.