2012 (11) TMI 255 - HC - Central Excise

Extended period of limitation - fraud, collusion, wilful mis-statement, suppression of facts or contravention of the provisions of the Act or the Rules made thereunder with intention to evade payment of duty Held that - Once the assessee availed credit under Rule 2(k) of the Rules of 2004 without entitlement it amounts to contravention of the rule with the intention of evading payment and the extended period of limitation would be available to the Revenue In favor of Revenue

Summary

Issues:
Entitlement to claim CENVAT credit on welding electrodes used for repairs and maintenance of plant and machinery under the Central Excise Act, 1944.

Detailed Analysis:

1. The appellant, a company manufacturing various goods falling under the Central Excise Tariff Act, 1985, availed CENVAT credit on welding electrodes used for plant maintenance. The issue was whether welding electrodes qualified as inputs for claiming credit. The Assistant Commissioner allowed the credit, but the Commissioner reversed the decision, citing a Tribunal ruling. The Commissioner held the appellant liable to refund the credit and pay interest, but dropped the proposed penalty.

2. The appellant appealed to the Tribunal, arguing that the issue required consideration by a larger bench of the Supreme Court. However, the Tribunal upheld the Commissioner's decision. The appellant contended that the reference made in a previous case did not directly address whether welding electrodes constituted inputs.

3. The definition of 'input' under Rule 2(k) of the CENVAT Credit Rules, 2004 was crucial. The Supreme Court clarified that goods must be used in or in relation to the manufacture of the final product to qualify as inputs. The Court emphasized that goods used for repair or maintenance, although essential, do not qualify as inputs under the Rule.

4. The Tribunal's decision was based on precedents stating that welding electrodes for repair and maintenance are not integrally connected with the manufacturing process. The Tribunal's stance was affirmed by the Supreme Court in a related case. The Court reiterated that unless goods are used in the manufacture of capital goods, they do not qualify as inputs under the Rule.

5. The Court rejected the appellant's argument that the extended recovery period for duty would not apply due to the dropped penalty. It clarified that the extended period arises in cases of fraud, collusion, or contravention of rules, irrespective of penalty imposition. The Court emphasized that availing credit without entitlement constituted a contravention, justifying duty recovery within the extended period.

6. Ultimately, the Court dismissed the appeal at the admission stage, concluding that no substantial legal question warranted further consideration. The appeal was rejected without costs, affirming the Tribunal's decision on the entitlement to claim CENVAT credit on welding electrodes used for repairs and maintenance.