2010 (4) TMI 484 - AT - Central Excise

Cenvat/Modvat - Input used in the manufacture of capital goods - The relevant facts that arise for consideration are that the appellant herein are service providers under the category of Storage and Warehousing Services. The appellant availed Cenvat credit on Cement and TMT Bars. During the scrutiny of the records, the lower authorities found that the appellant is not eligible to avail Cenvat credit on these items and coming to such a conclusion, they issued a Show Cause Notice dated 20-10-2006 for reversal of the amount taken as credit. The appellant contested the Show Cause Notice on various grounds including the ground of limitation. Held that - definition of capital goods shows that tubes, pipe fittings and storage tanks are eligible for availment of credit. Inputs as cement, TMT, bars and steel tubes used for construction of such capital goods. Benefit of credit thereon not deniable. Appeal allowed.

Issues:
1. Eligibility of Cenvat credit on Cement and TMT Bars for service providers under "Storage and Warehousing Services."
2. Grounds of limitation in contesting Show Cause Notice.
3. Imposition of penalty under Rule 15(1) of the Cenvat Credit Rules, 2004.
4. Interpretation of Capital Goods definition.
5. Classification of TMT Bars and Cement as inputs.
6. Disputed items usage for construction purposes.
7. Applicability of Cenvat credit rules for service providers.

Analysis:
1. The case involved a dispute regarding the eligibility of Cenvat credit on Cement and TMT Bars for service providers under "Storage and Warehousing Services." The appellant availed credit, but the lower authorities found them ineligible, leading to a Show Cause Notice for reversal of the amount taken as credit. The appellant contested this notice, including on grounds of limitation. The Commissioner (Appeals) rejected the appeal, leading to this appeal.

2. The appellant argued that the items in question are used for manufacturing Capital Goods, thus falling under the definition of Capital Goods eligible for credit. They also contended that the demand was time-barred, as returns indicating credit availed were regularly filed. Citing precedents, they argued against suppression of facts once returns are filed.

3. The JCDR contended that the appellant did not indicate availing credit on Cement and TMT bars in the ST-3 Returns. They argued that these items cannot be considered inputs as the resulting Capital Goods are not excisable goods.

4. The judgment analyzed the definitions of Capital Goods and input under the Cenvat Credit Rules, emphasizing that goods used for providing output services are eligible for credit. It was noted that inputs used for manufacturing Capital Goods, further used in the factory, are considered inputs. Despite the appellant not being a manufacturer but a service provider, the usage of inputs for constructing storage tanks and pipelines justifies credit availment.

5. Considering the undisputed usage of Cement, TMT Bars, and steel tubes for construction purposes related to storage and warehouse services, the judgment concluded that denial of credit would be unjustified. The appellant's utilization of these inputs for manufacturing capital goods aligned with the Cenvat Credit Rules, warranting credit availment.

6. Consequently, the Order-in-Appeal was set aside, and the appeal was allowed with any consequential relief. The judgment highlighted the permissible Cenvat credit for service providers under specific circumstances, emphasizing adherence to the defined rules and justifying credit availment based on the purpose of input usage in service provision.

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