2016 (9) TMI 1229 - AT - Central Excise

Cenvat credit - various iron and steel articles - steel items used in fabrication of capital goods and welding electrodes, Oxygen Gas and LPG Gas used in the manufacture of capital goods or for repair of the same - Held that - without going into the factual aspect as to whether the iron and steel articles were used for construction or as supporting structurals, in view of the decision of Hon ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. 2015 (5) TMI 663 - GUJARAT HIGH COURT which is an over-ruled decision, held that the amendment issued on 07.07.2009 cannot be held to be clarificatory amendment and as such, would be applicable only prospectively, we are of the view that the same would be entitled to credit inasmuch as the period in the present appeal is before 07.07.2009. Invokation of extended period of limitation - Demand - show cause notice stands issued on 30/09/2008, for the period, September, 2007 to December, 2007 - Held that - the credit was being availed after reflecting the inputs in the statutory RG-23 D Part-I and Part-II records. The fact of availment of credit was also being reflected in the statutory returns being filed with the Revenue. Non-disclosure of a fact for which there is no column in the records or in the returns, does not ipso facto lead to the conclusion that such non-disclosure is with malafide intention, especially, when there is no legal obligation on the part of the assessee to disclose a particular fact. As such, it is well settled law that if during the relevant period, the decisions of the higher authorities are in favour of the assessee and the law was reversed only subsequently, by a Larger Bench or by any other decision, no malafide can be attributed to the assessee and longer limitation period would not be available to the Revenue. As regards the welding electrodes and Oxygen Gas etc, we find that he issue again is no more res-integra and stand decided by various High Courts. One such refercne can be made to Chhattisgarh High Court in the case of Ambuja Cements Eastern Ltd. Vs. Commissioner of Central Excise, Raipur 2010 (4) TMI 429 - CHHAITISGARH HIGH COURT wherein welding electrodes used for repair and maintenance purpose were also held to be cenvatable. Similarly, in the case of Hindustan Zinc Limted Vs. Union of India 2008 (7) TMI 55 - HIGH COURT RAJASTHAN , the Hon ble High Court allowed the CENVAT Credit on the welding electrodes. By following said decision, we hold that the appellant is entitled to the credit. - Decided in favour of appellant with consequential relief

Summary

Issues:
1. Eligibility of CENVAT Credit on iron and steel articles used in manufacturing.
2. Applicability of limitation period for demanding duty.
3. Eligibility of CENVAT Credit on welding electrodes and gases used in manufacturing.

Analysis:
1. The main issue in this appeal was whether the iron and steel articles used by the assessee were eligible for CENVAT credit. The Tribunal referred to the decision in Vandana Global Limited case, which stated that even if these items were used as supporting structurals, they would not be modvatable. However, the Tribunal noted that the decision was overruled by the Hon’ble Gujarat High Court in the Mundra Ports & Special Economic Zone Ltd. case. The High Court held that the amendment issued on 07.07.2009 was not clarificatory and would apply prospectively. Therefore, the iron and steel articles used before this date were entitled to credit, regardless of their specific use in construction or as supporting structurals.

2. Apart from the merits of the case, the Tribunal also considered the limitation period for demanding duty. The show cause notice was issued in September 2008 for the period between September 2007 and December 2007. The lower authorities invoked the extended period based on the belief that the appellant was aware of the inadmissibility of the credit. However, the Tribunal found that there was no evidence of malafide intention on the part of the assessee. The appellant had disclosed the credit in their records and returns, and there were previous decisions in their favor during the relevant period. Therefore, the demand was considered to be barred by limitation.

3. The issue of CENVAT Credit on welding electrodes and gases used in manufacturing was also addressed. The Tribunal cited decisions from various High Courts, such as the Chhattisgarh High Court and the Rajasthan High Court, which allowed credit on welding electrodes used for repair and maintenance purposes. Following these precedents, the Tribunal held that the appellant was entitled to the credit for welding electrodes and gases used in their manufacturing process.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal and providing consequential relief to the appellant. The judgment was pronounced on 27/07/2016.