2014 (3) TMI 89 - AT - Central Excise

Availment of CENVAT Credit - Credit in respect of ASTM, shapes and sections, joists, MSI Beam, MS Angle, Channel, Welding Rods & Black Sheet - Revenue contends that these items does not cover under capital goods - Held that - cenvat credit would be admissible in respect of the steel items in question only as input, as the same are not covered by the definition of capital goods and for treating these items as inputs, there must be evidence on record to prove that the same have been used for fabrication of capital goods for which, prima facie, there is no evidence in form of any Chartered engineer s certificate and disclosure of manufacture and fabrication of capital goods or their parts in ER-I returns. As regards the issue of limitation, the same is a mixed question of facts and law and hence final view in respect of the same can be taken only at the stage of final hearing. In view of this, this is not the case for total waiver - Conditional stay granted.

Summary

Issues:
1. Eligibility of cenvat credit for steel items used in fabrication.
2. Burden of proof on the appellant regarding the use of steel items.
3. Application of limitation period for cenvat credit demand.
4. Requirement of pre-deposit for hearing the appeal.

Eligibility of Cenvat Credit for Steel Items:
The appellant, a manufacturer of cocoa powder and cocoa butter, claimed cenvat credit for steel items used in the fabrication of various machinery. The department contended that these items were not eligible as they were used for supporting structures, not capital goods. The appellant argued that the steel items were indeed used in the fabrication of capital goods. The Tribunal observed that evidence was lacking to prove the steel items were used for capital goods fabrication, necessitating a deposit of Rs. 20 lakhs for further proceedings.

Burden of Proof on Appellant:
The appellant asserted that the steel items were utilized for machinery fabrication, citing judgments supporting their claim. The Departmental Representative argued that the burden of proof rested on the appellant, which they failed to meet. The Tribunal noted the absence of concrete evidence, such as a Chartered engineer's certificate or disclosure in ER-I returns, to substantiate the appellant's claim.

Application of Limitation Period:
Regarding the limitation period for the cenvat credit demand spanning 2006-2007 to 2009-2010, the appellant contended that conflicting judgments during the disputed period justified their claim and that the demand should be time-barred. The department invoked the longer limitation period due to the appellant's non-disclosure of item usage. The Tribunal deemed the limitation issue a mixed question of facts and law, requiring further examination at the final hearing.

Requirement of Pre-Deposit:
The appellant sought a waiver of the pre-deposit requirement, arguing that the amount deposited earlier should suffice for the appeal hearing. The Tribunal, however, directed the appellant to deposit Rs. 20 lakhs within four weeks, pending confirmation of the previous deposit status. The decision emphasized the need for evidence to support the claim of steel items being used for capital goods fabrication.

In conclusion, the judgment addressed the eligibility of cenvat credit for steel items, the burden of proof on the appellant, the application of the limitation period, and the requirement of a pre-deposit for hearing the appeal, emphasizing the importance of substantiating claims with evidence in legal proceedings.