2024 (5) TMI 886 - AT - Central Excise

Cenvat credit - Capital goods - MS items used for fabrication and structural support - It appeared to Revenue that the Appellant has availed Cenvat credit on some ineligible MS items used in construction of structures for raw mill/fly ash silo/kiln, which are further used in the manufacture of dutiable finished goods - HELD THAT - The SCNs were issued on the basis of ruling of the Larger Bench of this Tribunal in the case of Vandana Globla Ltd vs CCE, Raipur 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) . This ruling has been reversed by the Hon ble Chattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT , wherein it has been held that the amendment to explanation 2 to Rule 2(k) of CCR vide Notification No. 16/2009-CE(NT) is not clarificatory and only have prospective operation. Following the ruling of Hon ble Madras High Court in the case of M/S. THIRU AROORAN SUGARS, M/S. DALMIA CEMENTS (BHARAT) LTD. VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE 2017 (7) TMI 524 - MADRAS HIGH COURT and also the ratio in the ruling of Hon ble Gujarat High Court in the case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS 2015 (5) TMI 663 - GUJARAT HIGH COURT , it has been held that Cenvat credit is available on all inputs, which are used in the factory of production either as inputs or capital goods for fabrication of capital goods, which are further used for manufacture of dutiable finished goods. Hon ble Madras High Court in the case of India Cements Ltd vs CCE, Chennai 2015 (3) TMI 661 - MADRAS HIGH COURT , in respect of availability of Cenvat credit on MS sheets, channels and plates etc., used for fabrication of fly ash, hopper, fly ash bin and handling system, have held that Cenvat credit is available. Thus, there is no dispute by Revenue as to receipt of the MS items in the factory of production and its further use in the fabrication of capital goods or supporting structures, without which no manufacture of dutiable finished goods can be done - the impugned order set aside - appeal allowed.

Summary

Issues:
Whether the Appellant rightly took Cenvat credit on MS items used for fabrication and structural support.

Analysis:
The Appellant, engaged in cement manufacturing, availed Cenvat credit on various MS items for constructing a new cement plant. Revenue alleged the Appellant availed credit on ineligible MS items used in construction, contending they were not components of capital goods or inputs. SCNs were issued post-2009 proposing disallowance of credit, leading to OIO disallowing credit and imposing penalties. The Appellant challenged this disallowance.

The Tribunal noted the Larger Bench ruling in Vandana Global Ltd vs CCE, Raipur, disallowing credit on MS items for support structures. However, the Chattisgarh High Court reversed this ruling, holding the amendment to Rule 2(k) of CCR had prospective effect. Citing judgments like Thiru Arooran Sugars vs CESTAT, Chennai, and Mundra Ports & SEZ Ltd vs Commissioner, the Tribunal held Cenvat credit is available on inputs used for fabrication of capital goods for manufacturing dutiable finished goods.

Referring to India Cements Ltd vs CCE, Chennai, and Bhavya Cements Ltd vs CC, CE & ST, Guntur, the Tribunal affirmed the availability of Cenvat credit on MS items used for fabrication. Revenue did not dispute the receipt and use of MS items in production. Consequently, the Tribunal allowed the Appeals, setting aside the Impugned Orders and granting the Appellant consequential benefits as per law.