2022 (2) TMI 137 - AT - Central Excise

CENVAT Credit - ineligible capital goods - M.S. Bars/Rods/Angles/Channels/Beams - H.R. Coils - Lubricating Oils - M.S. Girder/ Shape and Sections - alleged improper documents - documents as prescribed under Rule 9 of CCR not produced - extended period of limitation. M.S. Bars/rods/channels, etc. - HELD THAT - The Chartered Engineer in this report dated 21.08.2013 has mentioned that certain quantities of goods were required to manufacture certain specific capital goods as mentioned in their report. But the said Chartered Engineer Report, nowhere has declared that the very same goods, which are the subject matter of the impugned proceedings, were used to manufacture these capital goods. Their report just mentions that such inputs can be used in manufacturing of capital goods, as well as for laying foundation/structures also. However, CENVAT Credit is available only for those inputs which were used in production/manufacturing of end products. Therefore, this report cannot be made basis to establish that the goods under the impugned proceedings were used for making of capital goods, pollution control equipment or in repair maintenance of capital goods. Thus, he held that CENVAT credit of ₹ 20,07,588/- availed by the assessee on such items is not admissible to them. Extended period of limitation - HELD THAT - It was observed that the appellant have not put forth any evidence to suggest that they have informed the Department in this regard for having taken cenvat credit on the items in dispute. Further, these were detected during inspection by the officers of the AE Team. Further, it is held that extended period of limitation has been rightly invoked. Duty paying documents - HELD THAT - Taking of cenvat credit has to be decided on the date of receipt of the inputs or capital goods. There is no requirement of one to one correlation. Admittedly, in the facts of this case, the Court Below has found such inputs were required for fabrication of the capital goods in question and further, found that these are essential for manufacture of dutiable goods. Further, there is no allegation in the show cause notice that the appellant has clandestinely cleared any of the goods on which cenvat credit is in dispute. It is found from the perusal of the invoices, copies of which have been filed before this Tribunal, in separate paper book, the invoices have been issued in proper format and contain the proper address of the appellant as well as central sales tax and VAT No. Further, excise duty has been separately reflected in the invoices - amount of ₹ 36,232/- is available as cenvat credit. Appeal allowed in part.

Summary

Issues involved:
1. Disallowance of Cenvat Credit on alleged ineligible capital goods
2. Disallowance of Cenvat Credit on alleged improper documents (commercial invoices)

Analysis:

Issue 1: Disallowance of Cenvat Credit on alleged ineligible capital goods:
In the first round of litigation, the Adjudicating Authority disallowed the Cenvat Credit mainly on the grounds that the inputs were used in laying foundation and making structures for support of capital goods. However, the appellant argued that the inputs were also used for making several capital goods and equipment, as well as for repair and maintenance of capital goods. The Commissioner (Appeals) remanded the matter to the Adjudicating Authority for further review. In the second round of litigation, the Adjudicating Authority allowed the claim in part by permitting Cenvat Credit on lubricating oils. However, regarding the M.S. Bars/Rods/Angles/Channels/Beams, etc., the Adjudicating Authority observed that the appellant had already reversed a portion of the Cenvat Credit. The Additional Commissioner considered the report of the Chartered Engineer, which detailed the usage of iron and steel in construction activities supporting the manufacturing process. The Adjudicating Authority concluded that the Cenvat Credit availed by the assessee on certain items was not admissible. The amount disallowed was held to be recoverable, and penalties were imposed under Rule 15 and Section 11 AC. The extended period of limitation was deemed applicable due to lack of evidence provided by the appellant.

Issue 2: Disallowance of Cenvat Credit on alleged improper documents:
Regarding the disallowance of Cenvat Credit on alleged improper documents (commercial invoices), the Adjudicating Authority found that the invoices lacked essential information such as registration numbers and necessary details as prescribed under Rule 11 of the Central Excise Rules. Consequently, the amount related to these invoices was deemed inadmissible. However, upon review, the appellate authority found that the invoices were issued in the proper format, contained necessary details, and excise duty was separately reflected. The appellate authority held that the disallowed amount related to these invoices was available as Cenvat Credit. The impugned order was modified to allow the Cenvat Credit on these invoices, and all penalties were set aside.

In conclusion, the appellate tribunal allowed the appeal with consequential benefits, setting aside the disallowance of Cenvat Credit on certain capital goods and improper documents.