2015 (12) TMI 1439 - AT - Central Excise

Denial of CENVAT Credit - Goods neither inputs not capital goods - Held that - It is no doubt some of the items have been used by the appellant for fabrication of supporting structure embedded to earth for which the Chartered Engineer who is an expert in the field as already given in his report that appellant has used the quantity of 49.85 MT of these items for supporting structures and on the said quantity appellant has not claimed Cenvat Credit. The appellant is able to show by way of Chartered Engineer Certificate that out of the total quantity 150 MT were used by the appellant for fabrication of capital goods. These observations of the chartered engineer which have been relied by the appellant have been discarded by the authorities below without any tangible evidence. Merely saying that all the items were used for supporting structure is not admissible evidence. Therefore, as the appellant has been able to show the usage of the items in question for fabrication of capital goods as directed by this Tribunal in the earlier round of litigation, I have no hesitation to hold that appellant is entitled to take Cenvat Credit on this quantity. For the remaining quantity if revenue feels that appellant has taken the credit they may initiate another proceeding against the appellant. But to the quantity upto 150 MT appellant is entitled to take Cenvat Credit. - Appeal disposed of.

Summary

Issues:
1. Denial of Cenvat Credit on steel items like Plates, Channels, Joists, Beams, Flats for the period July 2004 to March 2005.
2. Disagreement on the classification of items as inputs or capital goods.
3. Appeal against the impugned order based on the earlier Tribunal decision in the case of Vandana Global Ltd. Vs. CCE Raipur-2010 (253) ELT 440 (Tri-LB).
4. Examination of Chartered Engineer Certificate confirming the usage of items in various structures.
5. Dispute regarding the entitlement of the appellant to claim Cenvat Credit based on the usage of the items.
6. Allegation of authorities discarding the Chartered Engineer's certificate without tangible evidence.
7. Decision on the appellant's entitlement to Cenvat Credit based on the usage of items for fabrication of capital goods.

Analysis:
The judgment revolves around the denial of Cenvat Credit on steel items and the classification of these items as either inputs or capital goods. The Revenue contended that the items were not eligible for Cenvat Credit as they did not qualify as inputs or capital goods. However, the appellant, in the second round of litigation, presented a Chartered Engineer Certificate confirming the usage of the items in various structures. The certificate indicated that a portion of the items was used for supporting structures embedded to earth, for which the appellant did not claim Cenvat Credit. The appellant availed Cenvat Credit only on the quantity used for the fabrication of capital goods, totaling 146.925 MT.

The lower authorities rejected the Chartered Engineer's certificate without providing substantial reasons. The Tribunal acknowledged the expert opinion presented by the Chartered Engineer, which highlighted the specific quantities of items used for different purposes. The Tribunal emphasized that mere assertions of all items being used for supporting structures were insufficient evidence. Consequently, the Tribunal ruled in favor of the appellant, allowing Cenvat Credit on the quantity of 150 MT used for the fabrication of capital goods, as directed in the earlier round of litigation.

The judgment concluded by setting aside the impugned order and granting the appellant the right to claim Cenvat Credit on the specified quantity of items. The Tribunal suggested that if the Revenue believed the appellant had wrongly claimed credit on the remaining quantity, they could initiate separate proceedings. Overall, the decision emphasized the importance of substantiated evidence and upheld the appellant's entitlement to Cenvat Credit based on the demonstrated usage of the items for the fabrication of capital goods.