2015 (5) TMI 329 - AT - Central Excise

Waiver of pre deposit - Denial of CENVAT Credit - Capital goods - Held that - Applicant M/s Tata Steel Ltd has availed cenvat credit on the capital goods sold/ supplied by M/s L & T, which were later installed and used in or in relation to the manufacture of finished goods in their premises, a fact not in dispute. At this stage, it is not clear as to how and under what provision, the cenvat credit on the capital goods could be held inadmissible, as undisputedly, the said capital goods are installed in their factory and continued to be in their possession and used in the manufacture of finished goods. Also, prima facie it is not understandable as how payment of service tax by M/s L&T Ltd. treating the project as works contract, would deprive M/s Tata Steel Ltd to avail credit on the duty paid capital goods sold/supplied. Thus, we are of the opinion, that the Applicants could able to make out a prima-facie case for total waiver of pre-deposit of dues adjudged. Consequently, pre-deposit of dues adjudged against all the Applicants are waived and its recovery is stayed during pendency of appeals - Stay granted.

Summary

Issues:
- Waiver of predeposit of Cenvat Credit and penalty under Rule 26 of the Central Excise Rules, 2002.

Analysis:
The judgment involves applications seeking waiver of predeposit of Cenvat Credit and penalties imposed on different parties under Rule 26 of the Central Excise Rules, 2002. The Applicant No. (ii) sought waiver of predeposit of Cenvat Credit of Rs. 2.75 Crores and an equal amount of penalty, while penalties of Rs. 2.75 Crores and Rs. 25.00 lakhs were imposed on Applicant No. (i) and Applicant No. (iii) respectively. The Applicant No. (ii) argued that they had entered into contracts with M/s Larsen & Toubro Ltd. for various services and had availed Cenvat Credit on capital goods supplied by them. The department objected to the admissibility of Cenvat Credit on the grounds that the capital goods were inputs for M/s Larsen & Toubro Ltd., and therefore, not eligible for Cenvat Credit in the hands of Tata Steel Ltd.

The Advocate for M/s Larsen & Toubro Ltd. contended that the imposition of penalties under Rule 26(2) of the Central Excise Rules, 2002 was unwarranted as they had not aided or abetted in issuing invoices without movement of goods. On the other hand, the Revenue argued that the composite nature of the contract between the parties rendered the capital goods ineligible for Cenvat Credit, and M/s Larsen & Toubro Ltd. was liable for penalties for knowingly issuing invoices for sale of materials in a composite works contract service.

Upon analysis, the Tribunal found that the Applicant M/s Tata Steel Ltd. had availed Cenvat Credit on capital goods supplied by M/s Larsen & Toubro Ltd., which were used in the manufacture of finished goods in their premises. The Tribunal observed that the payment of service tax by M/s Larsen & Toubro Ltd. for works contract services did not disentitle Tata Steel Ltd. from availing Cenvat Credit on the duty paid capital goods. Therefore, the Tribunal concluded that the Applicants had made a prima facie case for the total waiver of predeposit of dues adjudged. As a result, the predeposit of dues adjudged against all the Applicants was waived, and the recovery was stayed during the pendency of appeals. The stay petitions were allowed, and the judgment was pronounced in the open Court.