2017 (10) TMI 77 - AT - Central Excise

CENVAT/MODVAT credit - fabrication and installation of machine, machinery parts - whether the respondent has rightly availed Modvat credit on HR Sheet, Plate, Channel, Shape & Section, Round, Angle etc. used in fabrication of machine, machinery parts and support structure necessary for installation of heavy machinery? - Held that - The Hon ble High Court of Chhattisgarh in the case of U.O.I. Vs. Associated Cement Company Ltd. 2010 (10) TMI 1142 - CHHATTISGARH HIGH COURT has held that structural items-Angles, Channels, Plates, Rods etc. required to make machines function without any vibration or movement, cannot be said to be used in construction of buildings but linked with machinery used in production of final product, therefore, the Cenvat credit is admissible - credit allowed - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Modvat credit on various items used in the establishment of a new sugar factory.
2. Appeal against Order-in-Appeal dated 26/02/2010.
3. Admissibility of Modvat credit on HR Sheet, Plate, Channel, Shape & Section, Round, Angle etc. used in fabrication of machinery parts.

Analysis:
1. The case involved a dispute regarding the Modvat credit claimed by the respondent on various items used in establishing a new sugar factory. The Department issued show cause notices demanding duty for the period November 1994 to August 1996 on machine, machinery parts, and accessories, as well as iron and steel items. The adjudicating authority allowed Modvat credit on certain items but disallowed it on others, imposing penalties accordingly.

2. The respondent appealed against the Order-in-Original dated 31/12/2003 before the Learned Commissioner (Appeals) Central Excise, Meerut-II. The Commissioner allowed the appeal on several items but disallowed it on CO-generation system, welding machine, welding electrodes, HSD, and invoices involving Modvat credit. The penalty imposed was set aside.

3. The Revenue then filed an appeal against the Commissioner's order, contesting the denial of Modvat credit on specific items. The Counsel for the respondent argued that a separate appeal had been filed regarding the denial of Modvat credit of a certain amount, which had been decided by the CESTAT New Delhi in favor of the respondent. They further contended that Modvat credit on items of iron and steel was admissible by applying the user test, citing various judgments in support.

4. Upon hearing both sides and examining the records, the Tribunal found that the main issue was whether the respondent rightly availed Modvat credit on items like HR Sheet, Plate, Channel, Shape & Section, Round, Angle, etc., used in the fabrication of machinery parts. The Tribunal noted that the respondent had provided detailed charts showing the use of each item and referred to Tribunal judgments and other legal precedents. Relying on these precedents, including a Supreme Court decision and various Tribunal orders, the Tribunal upheld the Commissioner's decision to allow the Modvat credit. The Tribunal concluded that the appeal by the Revenue lacked merit and dismissed it accordingly.