9911796707
TMI Blog2018 (3) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ets etc. used for fabrication of capital goods / structural supports of capital goods - credit allowed. Whether the credit is admissible on welding electrodes and tubes and pipes? - Held that: - The very same issue was considered by the Hon’ble Apex Court in Ramala Sahkari Chini Mills Ltd. Vs. Commissioner of Central Excise, Meerut [2010 (11) TMI 34 - SUPREME COURT OF INDIA], wherein the meaning of the word 'includes' was analysed by the Hon’ble Larger Bench of the Supreme Court and held that the said words used in the definition of inputs does not have restricted meaning. The amendment in the definition of inputs restricting the use of MS items for structural support of capital goods was inserted only on 7.7.2009 - the goods on which credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority vide Order-in-Original No.2/2008 dated 21.8.2008 disallowed the credit to the tune of ₹ 94,530/- in respect of goods falling under Tariff sub-heading 8708 and held that credit is admissible on MS plates, channels, HR plates/sheets etc. falling under Chapter 72 and 73. He also imposed equal penalty to the tune of ₹ 90,000/- on the disallowed credit under Rule 15 of CENVAT Credit Rules, 2004. Although the Commissioner held that the assessee is eligible for credit on MS Channels, MS angles etc., he directed the assessee to file utilisation certificate to the Range Superintendent directing the Superintendent to arrive at the quantum of credit admissible. Aggrieved by such direction of the Commissioner to the Range Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the ld. AR Shri S. Govindarajan reiterated the grounds in the appeal filed by the department. He submitted that the Commissioner ought to have decided the issue of eligibility of credit instead of relegating the said duty to the Range Superintendent. He therefore prayed that the Commissioner himself may be directed to decide the admissibility of CENVAT credit. 6. Heard both sides. 7. After hearing both sides, it is seen that the departmental appeal is only on the ground that the remand direction to the Range Superintendent is not sustainable in law for the reason that Commissioner himself ought to have examined the eligibility of CENVAT credit. In para 12 of the impugned order, we find that on merits, the Commissioner has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adurai Vs. Strategic Engineering (P)Ltd. 2014 (310) ELT 509 (Mad.), we hold that the penalty requires to be set aside, which we hereby do. The appeal filed by the assessee is partly allowed in the above terms and the appeal filed by the department is disposed directing the adjudicating authority to verify the admissibility of credit. Appeal Nos. E/439 to 443/2011 9. The issue arising for consideration in other appeals E/439 to 443/2011 being same, the details of the period involved, the duty demand etc. are given as under:- SCN OIO Period Amount in dispute in Rs. Demand dropped in Rs. Penalty in Rs. Appeal No. 81/2008 dt. 4.9.08 7/2011 dt. 30.5.2011 9/07 to 3/08 53,57,484 10,719 2,00,000 E/439/11 35/2009 dt.25.3.09 8/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctural supports of capital goods is eligible for credit. He explained that during the impugned period, the disputed items on which the assessee has availed credit would be eligible for credit either under capital goods or as inputs. The assessee had used the MS items for fabrication in the overhead cranes, re-heating furnace, ductings and chimneys, conveys and structures for cooling towers etc. these items fall within the definition of capital goods. 12. The ld. Counsel pointed out that in the case of Appeal No.E/442/2011, though period involved is after 7.7.2009, the items / goods were received in the factory prior to 7.7.2009. The assessee had availed 50% of the credit prior to 7.7.2009 and the balance 50% was availed after the said dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d words used in the definition of inputs does not have restricted meaning. The period involved in all these appeals except E/442/2011 is prior to 7.7.2009. The amendment in the definition of inputs restricting the use of MS items for structural support of capital goods was inserted only on 7.7.2009. In Appeal E/442/2011, the goods on which credit is availed was received in the factory prior to 7.7.2009. On the date of receipt of goods the restriction brought forth by the amendment dated 7.7.2009 was not in existence. Taking into consideration these facts and applying the decision in the case of India Cements (supra) and Thiru Arooran Sugars (supra), we are of the considered opinion that the disallowance of credit is unjustified. The demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
