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TMI Blog2016 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... cific exclusion in the definition of capital goods. The ld. Commissioner (A) is therefore right in holding that if the inputs were to include every product which is somehow related to the premises where the manufacturing process goes on, then there may not be a need to provide a definition of the term capital goods and therefore, the acceptance of the contention of the assessee would render the definition of the term “capital goods” to be redundant as well as the provisions relating to extending the benefit of Cenvat credit to the capital goods. Invokation of extended period of limitation - Held that:- the contention of the appellant that the credit was availed in Oct 2011 and the notice demanding recovery of credit was issued on 3.6.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest and proposing penal action under Rule 15(2) of CCR, 2004 read with Section 11 AC of CEA, 1944. On adjudication, the adjudicating authority confirmed recovery of wrongly availed cenvat credit of ₹ 9,164/- only along with interest and imposed penalty of ₹ 4,582/- towards wrong availment of replacement of cement asbestos sheets under Rule 15 (2) of CCR. On appeal, the Commissioner (Appeals) rejected the appeal and upheld the order of the adjudicating authority on the ground that OIO is proper and it needs no interference. Hence the present appeal. 2. Ld. Counsel Shri G. Derrick Sam, Advocate appearing on behalf of the appellant assessee submits that the issue involved in this appeal is of recurring nature. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ambit of capital goods defined under Rule 2 (a) (A) of CCR, 2004. It is clearly established that the assessee had contravened the provisions of CCR inasmuch as they had wrongly availed Cenvat credit on Asbestos sheet which is not a capital goods. Only on verification of records, irregular availment of cenvat credit on Asbestos sheet came to light. Hence, suppression of fact with an intent to evade payment of excise duty was proved and extended period was invoked. Therefore, recovery of ineligible credit availed along with interest and penalty is correct and legal. The appeal is required to be rejected. 4. Heard both sides and perused the records. The short issue to be decided is whether the asbestos sheet is covered under the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced as per desired specifications. High pressure air wipers are used to clean the sheet at the time of CR Rolling. Hence, it is essential to provide protective cover on and around the mill area to protect it from exposure to environment. In the atmosphere during various climatic conditions like summer, winter, rainy season, lot of salts, gases dust particles are present. During night time they settle down along with the dew on the surface of the product, which will create oxides on the surface of the sheets, which is technically not acceptable in finished goods. If any dust or foreign body particle goes to the roll with the sheet under rolling (which is rolled in microns thickness), it would create roll marks on the rolls as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions relating to extending the benefit of Cenvat credit to the capital goods. However, the contention of the appellant that the extended period is not invocable in their case merits consideration. The contention of the appellant that the credit was availed in Oct 2011 and the notice demanding recovery of credit was issued on 3.6.2014; that the availment of credit was reflected duly in ER 1 returns and that the cenvat credit were regularly scrutinised by audit officials has nowhere been contested to be wrong by the revenue. It is also to be borne in mind that the appellant mill is managed by the Govt. of Tamilnadu. Taking into account the facts and circumstances referred above, the invocation of extended period is unsustainable. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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