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2022 (1) TMI 764 - HC - Central ExciseCENVAT Credit - goods which are not in the nature of Capital Goods - inputs having been used in the fabrication of storage tanks - eligibility of Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004 - requirement of perusal of certificate of Chartered Accountants or not - corroborative evidence or not - argument of the assessee is that the items on which the credit was availed had been used for commissioning and fabrication of the storage tanks would get covered under sub clause (iii) of clause (a) of the definition of capital goods and these are necessarily required for the activities in the factory and for manufacture of the final products. HELD THAT - Whether the assessee had produced supportive documents based on which the Chartered Accountant had certified in their favour. On going through the order passed by the tribunal as well as the other materials which were on record, it is found that the Chartered Accountant certificate does not specifically state that it has been issued upon verification of all the details. It is argued by the Learned Counsel for the assessee that it may not be required for the Chartered Accountant to spell out the said details. However, it is the duty on the part of the assessee to produce documents to show that the certificate has been issued upon verification of all the details. This has not been done by the assessee as there is no record referred to or relied on by the tribunal which corroborates the certificate issued by the Chartered Accountant. Thus, it is clear that the Chartered Accountant certificate was referred to and relied upon for the first time before the tribunal. In such circumstances, the appropriate course that the tribunal could have been adopted was to remand the matter to the adjudicating authority to call upon the assessee to substantiate the Chartered Accountant certificate by producing relevant documents. However, the tribunal accepted the certificate in toto without noting the fact that there were no corroborative documents produced by the assessee to substantiate the contents of the certificate which admittedly did not certify that the Chartered Accountant had verified the details and there after issued the certificate. Certificate which was produced before the tribunal, appears to have been produced for the first time before the tribunal - There is nothing on record to indicate that the assessee had produced supportive documents to substantiate the Chartered Accountant certificate. Even assuming, the assessee was in possession of the documents, the endeavour of the tribunal should have been to either verify the documents, call for a remand report or remit the matter to the adjudicating authority to verify the correctness of the certificate issued by the Chartered Accountant. This exercise having not been done, a question of law arises for consideration in this appeal. The verification is required to be made as to the correctness of the contents of the Chartered Accountant certificate, as the certificate appears to have been produced for the first time before the tribunal and does not indicate that the same has been issued after due verifications of the details - matter has to be remanded to the adjudicating authority for fresh consideration. Appeal allowed by way of remand.
Issues Involved:
1. Eligibility of Cenvat credit on goods not classified as 'Capital Goods' under Rule 2(k) of the Cenvat Credit Rules, 2004. 2. Appropriateness of the Tribunal's reliance on the Karnataka High Court's decision in SLR Steels. 3. Eligibility of Cenvat credit on items used in the fabrication of storage tanks within the factory premises under Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004. 4. Consideration of the Chartered Accountant’s certificate by the Tribunal, which was not produced before the adjudicating authority. 5. Validity of the Chartered Accountant’s certificate as sole evidence without corroborative support. Detailed Analysis: 1. Eligibility of Cenvat credit on goods not classified as 'Capital Goods': The revenue argued that the respondent availed Cenvat credit on goods under Tariff Heading 72 and 73, which are not classified as 'Capital Goods' under Rule 2(k) of the Cenvat Credit Rules, 2004. The adjudicating authority held that the structural items used for platforms, structures for carrying pipelines, and foundations for capital goods are permanent and embedded, thus qualifying as immovable property and not as inputs or capital goods for manufacturing. 2. Appropriateness of the Tribunal's reliance on the Karnataka High Court's decision in SLR Steels: The revenue contended that the Tribunal incorrectly relied on the Karnataka High Court's decision in SLR Steels, which was not applicable to the facts of the present case. The Tribunal's reliance on this decision was challenged as the circumstances differed significantly. 3. Eligibility of Cenvat credit on items used in the fabrication of storage tanks within the factory premises: The adjudicating authority concluded that the items used for fabricating storage tanks within the factory premises did not fall under the definition of capital goods as per Rule 2(a) of the Cenvat Credit Rules. The authority noted the absence of records or documents identifying such tanks, reinforcing the view that the items were not eligible for Cenvat credit. 4. Consideration of the Chartered Accountant’s certificate by the Tribunal: The Tribunal relied heavily on a Chartered Accountant’s certificate dated 23.08.2016, which was not presented before the adjudicating authority. The revenue argued that the certificate lacked verification of details and that the Tribunal should not have accepted it without corroborative evidence. 5. Validity of the Chartered Accountant’s certificate as sole evidence: The Tribunal's acceptance of the Chartered Accountant’s certificate as sole evidence was contested. The revenue cited precedents where such certificates were deemed insufficient without supporting documents. The court emphasized that the certificate alone could not substantiate the claim for Cenvat credit, and the Tribunal should have either verified the certificate or remanded the matter for further examination. Conclusion: The High Court found that the Tribunal erred in relying solely on the Chartered Accountant’s certificate without corroborative evidence. The adjudicating authority's detailed examination of the facts and the absence of supportive documents were overlooked by the Tribunal. Consequently, the High Court set aside the Tribunal's order and remanded the matter to the adjudicating authority for fresh consideration, directing the respondent to produce sufficient documents to substantiate the Chartered Accountant’s certificate. The substantial questions of law were answered in favor of the revenue.
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