2016 (7) TMI 126 - HC - Central Excise

Cenvat credit on inputs / capital goods used in installing the Captive Power Plant and Captive Power Plant is a Turnkey project which was not excisable - violation of Rule 2(a)(A)(i) and (iii) of the cenvat credit rules - Held that - The Tribunal has not considered the matter while allowing the appeal with reference to in allowing credit for the entire co-generation plant without examining the eligibility of the individual items of capital goods for taking CENVAT Credit as per CCR 2004. The Tribunal has simply followed the earlier order passed by the Tribunal and granted relief without discussing the eligibility of individual items involved in the Appeal. Therefore to meet the interest of justice the Appeal has to be allowed and remanded to the CESTAT. - Decided in favor of Revenue.

Issues:
1. Wrong availing of Cenvat credit on components for setting up a captive power plant.
2. Appeal against the order of the Commissioner of Central Excise.
3. Tribunal's decision on allowing credit for the entire co-generation plant.
4. Eligibility of individual items for CENVAT credit.
5. Remand of the matter for fresh adjudication.

Analysis:

1. The appellant, a manufacturer of sugar and molasses, availed Cenvat credit on components for setting up a captive power plant. The show cause notice alleged that the power plant did not fall under specific Chapter Headings specified in the Cenvat Credit Rules, 2004, and thus, contravened Rule 3 of the Rules. The Assessee argued that the components used were capital goods falling under the definition specified in the Rules and were used in the production of dutiable goods, not electricity. The Commissioner confirmed the demand for wrong Cenvat credit, imposing a penalty and interest.

2. The Assessee appealed to the Customs, Excise and Service Tax Appellate Tribunal, which allowed the appeal based on a decision from the Mumbai Bench. The Revenue challenged this decision in the present Civil Miscellaneous Appeal, questioning the Tribunal's failure to examine the eligibility of individual items for credit. The Tribunal's decision was based on the denial of credit by the Commissioner, without considering the eligibility of each item for CENVAT Credit as per the Rules.

3. The substantial questions of law formulated for consideration included whether the Tribunal was right in allowing credit for the entire co-generation plant without assessing the eligibility of individual items. The Tribunal's decision was criticized for not discussing the eligibility of individual items and merely following a previous order. The matter was deemed to require fresh adjudication to ensure justice.

4. The Court, after considering submissions from both parties, decided to set aside the Tribunal's order and remand the matter to the original adjudicating authority for fresh consideration. The Court directed the Commissioner of Central Excise to re-examine the issue in accordance with the statutory provisions. The substantial questions of law were answered in favor of the appellant, and the Civil Miscellaneous Appeal was allowed with the direction for remand, without any costs imposed.

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