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TMI Blog2024 (10) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Capital Goods , the appellant is clearly not eligible for the benefit of the cenvat credit treating the dumpers as Capital Goods . The decisions of M/S. ADITYA CEMENT VERSUS CCE, JAIPUR-II [ 2016 (9) TMI 1127 - CESTAT NEW DELHI] and BHARATHI CEMENT CORPORATION PVT LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI GST [ 2022 (9) TMI 850 - CESTAT HYDERABAD] is not relevant in view of the fact that the appellant himself has considered the dumpers as capital goods and they have also admittedly claimed depreciation on these assets. The decision in the case of VIKRAM CEMENT VERSUS CCE, INDORE [ 2006 (2) TMI 1 - SUPREME COURT] is also not applicable since the mines where the dumpers are used are not captive mines. Thus, the dumpers are not eligible for cenvat credit neither as inputs nor as capital goods. Extended period of limitation - HELD THAT:- The original authority in the impugned order has only stated that the appellant after realising that they were not eligible for credit on dumpers as capital goods, they availed cenvat credit on the same declaring them as inputs and this itself is a deliberate act with an intent to avail irregular cenvat credit. The Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd settled in favour of the appellant by the following decisions: (i) Aditya Cement Vs. Commissioner of Central Excise, Jaipur II 2017 (346) E.L.T. 300 (Tri.- Del.) (ii) Bharathi Cement Corporation Pvt. Ltd. Vs. Commr. of Central Tax, Tirupati GST- 2022 (9) TMI 850 CESTAT Hyderabad (iii) Commissioner of Central Excise, Bhopal Vs. Hindustan Copper Ltd. 2016 (342) E.L.T. 282 (Tri. Del.) (iv) M/s. Gaurav Contract Co. Vs. C.C.E S.T. Rajkot 2020 (10) TMI 863 CESTAT Ahmedabad (v) Jayaswal Neco Ltd. Vs. CCE 2015 (319) E.L.T. 300 (Tri. Del.) (vi) Aditya Cement Vs. Commissioner of Central Excise, Jaipur-II-2017 (346) E.L.T 282 (Tri. Del.) (vii) Commissioner of Central Excise, Bhopal Vs. Hindustan Copper Ltd. 2016 (342) E.L.T. 145 (S.C.) 4. The learned Authorized Representative (AR) on behalf of the Revenue reiterating the findings of the authorities below submitted that the appellant is not eligible for cenvat credit either as input goods or capital goods. Referring to the definitions of inputs and capital goods as per Cenvat Credit Rules, 2004, it is stated that the dumpers used in the mines for transporting of raw material from the mines to the factory cannot be considered as an input and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory of the manufacturer; 5.1 As per the definition reproduced above, the dumpers cannot be considered as inputs as they are neither used in the manufacture of final products nor are used within the factory of production. Moreover, the appellants by claiming depreciation of the capital assets have clearly held that they are capital goods. Now, to examine whether the appellant was eligible for cenvat credit as capital goods , one needs to examine the definition of capital goods (reproduced below) during the relevant period. The capital goods were defined as: (a) capital goods means :- (A) the following goods, namely :- (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof following under heading 68.04 of the First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, used - (1) in the factory of the manufacturer of the final products, but does not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the above judgment had observed as follows: As regards the Modvat/Cenvat credit on capital goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee. On the other hand, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue . In view of the above, the dumpers are not eligible for cenvat credit neither as inputs nor as capital goods. 6. With regard to limitation, the appellant has submitted that in view of the decisions in the case of M/s. Vikram Cement (supra) they have availed the cenvat credit on dumpers on bona fide belief that they are eligible for the same. The credit taken on dumpers was clearly mentioned in their ER-1 returns which were filed regularly in the department and no objections were raised. However, only when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of suppression of fact with intent to evade the payment of duty. It has been observed : ...Therefore, in order to attract the proviso to Section 11-A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act. It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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