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TMI Blog2022 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... t been made to the original supplier (OEMs) but to the Contractor against the separate set of commercial invoices - In any case, whether or not the payment has been made against the excise invoices issued by the OEM or the commercial invoice issued by the Contractor who has procured the goods on behalf of the Appellant for use in the power plant is completely irrelevant. The Ld. Commissioner has thus made a fundamental error while taking into consideration the above payment related aspect while deciding the eligibility to avail credit on capital goods. Extended period of limitation - HELD THAT:- There are no positive evidence to show that there was any fraud or willful suppression inasmuch as the availment of credit has been duly shown in the monthly returns and credit entries have been duly recorded in the Credit Register which form part of the Annexure to SCN. Thus, there are no ingredient to justify invocation of extended period of limitation and therefore, the impugned proceedings are also barred by limitation. The order cannot be sustained and is therefore set aside - Penalty also set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No.76623 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed CENVAT credit on said capital goods on the strength of central excise invoices i.e. duplicate copy for transporter, which were issued by the said OEM in compliance with the provisions of the CENVAT Credit Rules, 2004 (Credit Rules). 2.3 Show Cause Notice dated 05.03.2015 (SCN) was issued by invoking extended period of limitation whereby the availment of credit was disputed mainly on the grounds that (i) the contract for construction of CPP is EPC Project and that separate work orders/ contracts have been entered as a matter of mutual convenience, (ii) the appellant has not made payment to the other manufacturers (OEM) who have actually supplied the said goods under the cover of central excise invoices but the payment has been made to the Contractor against their commercial invoices, (iii) the goods on which credit has been availed by the appellant has actually been used by the Contractor for providing services and not used by the appellant, (iv) since the Contractor is not eligible to avail credit on subject goods, credit cannot be held to be eligible in the hands of the appellant. 2.4 In the course of adjudication, the Appellant filed reply in defence to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation made by the Ld. Commissioner with regard to bifurcation of the EPC contract into separate work orders / contract for sale of goods and service since not relevant for the purpose of deciding the eligibility of credit on subject capital goods. The Ld. Advocate relied on the unreported decision of the Tribunal in Final Order no. 75645 of 2021 dated 07.10.2021 in the case of Bharat Coking Coal Ltd vs. CCE, Ranchi, wherein CENVAT credit has been allowed on construction of Coal Handling Plant. He also relied on the Tribunal s decision in Monnet Ispat Energy Ltd vs. CCE, Raipur, 2015 (330) ELT 711 (Tri-Del) wherein by following the user test principles laid down by the Supreme Court and various High Courts, the Tribunal has allowed the credit on various iron and steel items used for fabrication of components/accessories of various machinery like rotary kiln, rotary cooler, conveyor systems, raw material preparation plant, power plant and pollution control equipment. (vii) He also disputed the imposition of penalty and interest and also submitted that the very invocation of extended period of limitation in the present facts of the case is bad in law. He relied on the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt subject matter. 6.4 The Ld.Commissioner has nowhere disputed the fact, as submitted by the appellant in the course of adjudication, that the duty paid capital goods in question have been duly received at the factory premises of the appellant. It is relevant to reproduce the portion of findings made by the Ld. Commissioner in para 82 of the impugned order as below:- UML availed credit of duty against invoices issued by the manufacturer but payments were never made to them against the same. It was released against a separate set of documents issued side by side by CVPL. For example the credit has been availed by UML against invoice number 00021 dated 15.06.2010 of M/s. Metform Corporation, manufacturer of welding electrodes, as capital goods. This invoice number 00021 dated 15.06.2010 is addressed to CVPL and name of UML is also mentioned at one place. However, payments were made for same to CVPL against their commercial invoice number CVL/B/1006/00260 dated 30.06.2010. Similar practice was adopted in respect of all such invoices received against said goods / materials/ equipment. Similar is the case when goods / materials / equipment procured from CVPL s own manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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