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TMI Blog2023 (6) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... oducer of final products and a provider of output service shall be allowed to take credit of the duty paid on eligible inputs or services. It means that cenvat credit can be availed by manufacturer or producer of final products who uses the inputs in or in relation to manufacture of final products. Rule 2(k)(i) of the Cenvat Credit Rules, 2004 which defines iputs for manufacturer states that these should be used in the factory . In the instant case, there is no evidence brought on record to show that the impugned goods purchased by the Appellant from IISCO and other manufacturers on payment of duty has not been used in the factory. Only an allegation has been made without any evidence that the scrap were not used in the factory as they were not capable to be used in the manufacture of Billets or Ingots. The Appellant stated that the goods so purchased from SAIL and others have been subjected to heating, straightening to make suitable for rolling and sometimes cut to sizes and then rerolled to manufacture their final products - the Appellants are eligible for the CENVAT credit availed on the inputs used in the manufacture of their final products namely, Rerolled products, MS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical in the respondent case? (iii) Why credit of CENVAT duty amounting to Rs. 90,05,802/- only Education Cess Amount to Rs.1,79,937/- only and Secondary Higher Secondary Cess amounting to Rs.90,128/- only should not be disallowed and recovered from then under Rule 14 of the CENVAT Credit Rules 2004 read with erstwhile proviso to Section 11A and/or present Section 11A(5) of the Central Excise Act, 1944 ? (iv) Why interest at the appropriate rate should not be charged and paid by them under Rule 14 of the CENVAT Credit Rules, 2004 read with erstwhile Section 11AB and/or present section 11AA of the Central Excise Act, 1944 ? (v) Why a penalty should not be imposed upon them under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 ? (vi) Whether the Learned Tribunal is justified in heavily relying upon the decisions being F.O. No. 75683/2018 dated 22.03.2018 passed in the case of M/s Sarva Mangalam Gajanan Steel Pvt. Ltd., Vs. Commissioner of Central Excise, Bolpur while coming to its conclusion without any independent reasons and without appreciating that in the facts and circumstances of the instant case, the aforesaid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s end cannot be changed by the receiver. In the case of Jai Raj Ispat Vs Commissioner of Central Excise, Hyderabad IV, the issue is related to classification of misrolls which are directly used by small re-rolling mills. The said misrolls have been classified under the sub heading 7207.90 of CETA. We observe that the goods received by the Appellants does not have the description mis-rolls in the invoices. Hence, the goods received are correctly classifiable under the sub heading 72044100, as classified by the suppliers. However, we observe that for the purpose of eligibility of CENVAT Credit, the classification of the input is irrelevant. The duty paid nature of the inputs and the receipt and utilization of the inputs in the manufacture of the final products are the relevant criteria required for allowing the credit. Having discussed the classification of the inputs received, as directed by the Hon ble High Court, we now proceed to decide the merits of the appeals filed by the Appellant, as directed by the Hon ble High Court. 6. Briefly stated facts of the case are that M/s Sarva Mangalam Gajanan Steel Pvt. Ltd., holder of Central Excise Registration No. AAICS5924JXM001 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35G of the Central Excise Act, 1944 before the Hon ble High Court at Calcutta . The Hon ble High Court has disposed both these Appeals vide Order dated 08.08.2022 and remanded the matter to the Tribunal to consider the cases afresh. Accordingly, the Appellant is before us again for deciding the appeals afresh. 8. In their submissions the Appellant stated that, (i) They have purchased TMT Cuttings (more than one meter), MRM Roll Spoils, Cobble Cuttings, finished TMT Bar Rolls Spoils etc from M/s SAIL, IISCO, Burnpur on payment of Central Excise duty and in few cases from other manufacturers. The above manufacturers classified the above goods under tariff item No. 72044100 of the Central Excise Tariff Act, but in actual those goods were re-rollable materials having length more than one meter. Those goods are mostly in the form of Misrolls and TMT Cuttings and generated in the course of rolling of the Billets in the Rod Mill section of M/s SAIl, IISCO, Bumpur and other manufacturers. They purchased the above goods to manufacture different hot rolled products. (ii) The goods so purchased from SAIL and others have been subjected to heating, straightening to make suita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities when first show cause notice issued While issuing second and third show cause notices, same similar facts could not be taken as suppression of facts on part of assessee as these facts already in knowledge of authorities- No suppression of facts on part of assessee appellant- Demands and penalty dropped Section 11A and 11AC of Central Excise Act, 1944: 10. They also relied on the decision of the Hon ble High Court in the case of Gujarat Ambuja Exports Ltd., Vs. U.O.I. [2011(269) E.L.T. 159 (Guj.)] wherein it has been held that since all the facts were already known to the department at the time of earlier show cause notice and so extended period of limitation cannot be invoked and hence the second notice except for the normal period is not maintainable. 11. The Departmental Representative reiterated the findings of the adjudicating authority in the impugned order. He stated that the Appellant has no furnace to melt the waste and scrap and hence these rerolled final products could not have been manufactured in the Appellant s factory. As the waste and scrap were not used in the factory, they were not eligible for the CENVAT credit availed on the inputs namely waste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on eligible inputs or services. It means that cenvat credit can be availed by manufacturer or producer of final products who uses the inputs in or in relation to manufacture of final products. 15. Rule 2(k)(i) of the Cenvat Credit Rules, 2004 which defines iputs for manufacturer states that these should be used in the factory . In the instant case, there is no evidence brought on record to show that the impugned goods purchased by the Appellant from IISCO and other manufacturers on payment of duty has not been used in the factory. Only an allegation has been made without any evidence that the scrap were not used in the factory as they were not capable to be used in the manufacture of Billets or Ingots. The Appellant stated that the goods so purchased from SAIL and others have been subjected to heating, straightening to make suitable for rolling and sometimes cut to sizes and then rerolled to manufacture their final products. The rolling mill installed by them have the capacity to roll such items. The Department has not adduced any evidence to counter this claim. Further, we find that the Rerolled products, MS Flat/Bar, MS Angle, MS Channel, MS Round etc, manufactured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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