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2014 (8) TMI 398 - AT - Central ExciseDenial of CENVAT Credit - Credit on capital goods - Whether on the impugned items, the assessee is entitled to take CENVAT credit which were used for erection of supporting structure which were embedded to the earth or not - Held that - Vandana Global Ltd. (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)) it was held that credit is not available. In these circumstances, relying on the decision of Vandana Global Ltd. (supra) I deny the CENVAT credit on these items. Further I find that the whether the appellants are entitled to take credit or not was in dispute till the decision of Vandana Global Ltd. (supra). It was decided by the Tribunal only on 30.04.2010. Therefore, in these circumstances at the time of taking credit it cannot be said that the appellant has taken wrong credit with malafide intentions. Accordingly, penalty imposed under Rule 13 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 is not impossible. Accordingly, the impugned order is modified to the extent that the demands of duty and interest are confirmed and the penalty is waived - Decided partly in favour of assessee.
Issues:
Appeal against denial of input credit on various items used in construction of supporting structure. Dispute regarding entitlement to input credit on items used for erection of supporting structure embedded to earth. Imposition of penalty under Rule 13 of CENVAT Credit Rules, 2004. Analysis: The appellants appealed against the impugned order denying input credit on items like plain plate, H.R.S.S. Plate, Angles, channel, Billets, M.S. Beams, H.R. Sheet, Flat, Chequered coil, and electrodes. The denial was based on the assertion that these items were not capital goods or parts thereof. The appellants argued that these items were used in the manufacture of their capital goods within the factory, making them eligible for credit. They cited precedents to support their claim. Alternatively, they referred to a dispute before a Larger Bench regarding the eligibility of input credit for items used in the erection of supporting structures embedded to the earth. The Tribunal held that steel structures used in the manufacture of immovable capital assets are not eligible for CENVAT credit as inputs for capital goods. Consequently, the mandatory penalty was deemed inapplicable due to the dispute during the relevant period. The opposing party contended that the issue had been settled by a previous decision where it was held that items used for erection of supporting structures embedded to the earth are not entitled to input credit as they are considered immovable products. The demand was confirmed within the normal limitation period, justifying the imposition of penalty under Rule 13 of the CENVAT Credit Rules, 2004. After hearing both sides, the Tribunal considered the settled issue regarding the eligibility of input credit for items used in the erection of supporting structures. Relying on the previous decision, the Tribunal denied CENVAT credit on these items. It was noted that the dispute regarding the entitlement to credit was resolved only after the decision of the previous case. Therefore, the penalty under Rule 13 of the CENVAT Credit Rules, 2004, along with Section 11AC of the Central Excise Act, 1944, was waived, as the appellants did not act with malafide intentions when taking the credit. Consequently, the impugned order was modified to confirm the demands of duty and interest while waiving the penalty. In conclusion, the appeal was disposed of with the modification of the impugned order as per the Tribunal's decision.
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