2014 (7) TMI 434 - AT - Central Excise

CENVAT Credit - Credit on oxygen - oxygen was used in three factories but credit availed in one factory only - credits on other inputs are taken separately - Held that - Appellants themselves have treated the three factories as different; they have taken separate registration from the department; they have been paying duty when the goods have been transferred from one unit to another and they have also taken Cenvat credit in respect of inputs separately. In view of the fact that the three units in this case were three corporate entities during a portion of the relevant period and the appellants themselves have treated them as three different factories, I consider that none of the decisions cited by learned counsel would help them. Further the appellants themselves have treated them as different factories and availed Cenvat credit separately in respect of the inputs oxygen, in my opinion, it was not correct on the part of the appellant to avail all the credit in respect of oxygen by ML only. Therefore, in my opinion, credit availed by ML in respect of oxygen as input is not admissible. Whether extended period could have been involved in this case - Held that - when the omission was pointed out, the appellants paid the Cenvat credit and if the department did not initiate any proceeding, the matter would have ended there. In these facts and circumstances, invocation of extended period was not called for. Therefore, I do not find any justification to confirm the demand for the extended period. Once the demand for extended period cannot be sustained, penalty also cannot be sustained. However for the demand for Cenvat credit wrongly availed within normal period, the matter is remanded to the original adjudicating authority for re-quantification of the amount payable for the normal period and interest thereon - Decided partly in favour of Revenue.

Summary

Issues:
1. Cenvat credit availed by only one unit in an integrated steel plant.
2. Appeal filed against one unit only, excluding others.

Analysis:
1. The case involves the issue of Cenvat credit availed by M/s Mukund Ltd. (ML) on duty paid for oxygen gas, which was used by all three separate entities in an integrated steel plant. The Revenue contended that the credit should have been taken in proportion to the actual use of oxygen by all three units. ML admitted the error and paid approximately &8377; 31 lakhs to the department. The original adjudicating authority confirmed a demand for a specific period and imposed penalties. However, the Commissioner (Appeals) set aside the demand and penalties. The Revenue appealed against this decision, leading to the current judgment.

2. During the hearing, it was pointed out that the appeal was filed against ML only, excluding the other two entities. The Revenue argued that since there was only one Order-in-Appeal, one appeal sufficed. However, it was acknowledged that separate appeals should have been filed for each entity, as per CESTAT rules. The Tribunal considered the appeal as filed only in respect of ML due to the lack of notices issued to the other parties mentioned in the prayer. This issue was resolved to focus the appeal on ML.

3. The Tribunal analyzed the submissions made by both sides regarding the Cenvat credit availed by ML. It was noted that all three entities were separate legal entities, had separate registrations, and treated the operations independently. The Revenue argued that ML incorrectly availed all the credit for oxygen gas, which was used by all units. The Tribunal found that ML's claim of being an integrated steel plant did not justify availing all the credit for oxygen. The Tribunal concluded that the credit availed by ML in respect of oxygen gas as input was not admissible.

4. The question of the extended period was also considered by the Tribunal. It was acknowledged that oxygen was used by all three units and that there was a mistake in not treating oxygen separately. However, the Tribunal found that there was no evidence to support the claim that ML deliberately availed excess credit. The Tribunal concluded that the invocation of the extended period was not justified. Therefore, the demand for the extended period and the associated penalties were not sustained. The matter was remanded for re-quantification of the amount payable for the normal period and interest thereon. The appeal was disposed of accordingly.