Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2909

Credit admissibility on inputs used in errection of capital goods captively used in factory.

Case:- TRACTOR ENGINEERS LTD. VERSUS COMMISSIONER OF C. EX. & CUSTOMS, PUNE
 
Citation:- 2015 (325) E.L.T. 890 (Tri. - Mumbai)
 
Brief facts:-This appeal is directed against Order-in-Appeal No. PI/VSK/260/2009, dated 9-12-2009 passed by the Commissioner (Appeals), Central Excise, Pune-I, wherein ld. Commissioner (Appeals) upheld the demand of Cenvat credit which was already paid by the appellant, demanded interest under Rule 14 of Central Excise Rules, 2002 and rejected the appeal by denying the waiver of penalty of equal amount.
The fact of the case is that appellant M/s. Tractor Engineers Limited purchased inputs which was used in the manufacture of furnace during factory of the appellant through contractor M/s. Bharat Gears Ltd. M/s. Bharat Gears Ltd. processed input provided by the various parties on behalf of the vendor in the construction of the furnace in the factory of the appellant. The Revenue proposed denial of Cenvat credit on the ground that furnace manager erected and installed in the factory of the appellant, no excise duty was paid on that, therefore, Cenvat credit is not admissible. The show cause notice was issued dated 30-4-2009 which was culminated into adjudicating order wherein the adjudicating authority confirmed demand of Rs. 2,96,017/- imposed of equal amount of penalty however the dropped the demand of interest. Aggrieved by the said order appellant filed appeal before the Commissioner (Appeals) only for waiver of penalty as they had paid Cenvat amount adjudged by the adjudicating authority. Ld. Commissioner not only rejected their appeal for waiver of penalty but also demanded interest under Rule 14 of Central Excise Rules. Aggrieved by the said order appellant is before Tribunal.
 
Appellant’s contention:- None appeared on behalf of the appellant nor there is any request for adjournment. Since issue lies in narrow compass, they proceed to decide the appeal on merit.
 
Respondent’s contention:- Shri H.N. Dixit, ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that once the demand stand confirmed penalty cannot be waived. He relied upon judgments in the following cases :
(a)       Union of India v. Ind-Swift Laboratories Ltd. [2011 (265)E.L.T.3 (S.C.)].
(b)       Balmer Lawries & Co. Ltd. v. Commissioner of Central Excise, Belapur [2014 (301)E.L.T.573 (Tri. - Mum).]
 
Reasoning of judgment:- They have carefully considered the submission made by ld. AR and perused the record.
The present appeal is only for waiver of penalty and interest. As regard Cenvat credit disputed by the Revenue, the appellant had deposited admittedly and same is not under context. The appellant have taken credit on the input which was used in the manufacture of erection and installation of the furnace within the factory of the appellant. Revenue denied the Cenvat credit only on the ground that no duty was paid on the furnace either by the appellant or contractor, i.e., M/s. Bharat Gears Ltd., therefore, credit for input used for manufacture of erection and installation of the furnace is not admissible. They do not agree with this contention of the Revenue for the reason that the furnace is specified capital goods as per the definition provided under Cenvat Credit Rules, 2002. Input on which Cenvat credit was availed were indeed used in manufacture of erection and installation of the furnace. In terms of Notification No. 67/1995-C.E., dated 16-3-1995 input includes in the goods used in the manufacture of capital goods and if such capital goods used within the factory for manufacture of dutiable goods the furnace was exempted under Notification No. 67/1995 but input used in manufacture of such furnace is clearly covered under the definition of input therefore, the credit on the input used in the manufacture of furnace is admissible. However appellant has not disputed the denial of Cenvat credit and paid the said amount admittedly and not contested. In view of the their above observations Cenvat credit was otherwise admissible, penalty should not have not been imposed therefore, said aside the penalty. As regard the interest demanded by the ld. Commissioner (Appeals) in his order, they find that the adjudicating authority in his order explicitly dropped the demand of interest against which Revenue has not filed any appeal before the Commissioner (Appeals) therefore, the said portion related to interest of the order attained finality and since no appeal made by the Revenue ld. Commissioner (Appeals) should not have passed any order in respect of interest. For this reason the interest demanded by the Commissioner (Appeals) in his order is hereby dropped. It is made clear that since the appellant have not contested demand of Cenvat credit which was paid by them suo motu without contest the same stand confirmed. The appeal is allowed in above terms.
 
Decision:- Appeal allowed.
 
Comment:- The essence of the case is that the cenvat credit of inputs used in the manufacture of capital goods that are used in the factory is clearly admissible even when no excise duty is being paid on the manufacture of such capital goods in view of exemption notification no. 67/1995-CE for captive consumption as far as the said capital goods are used in the manufacture of dutiable final products. When the demand of cenvat credit itself is not sustainable, although it is not contested, the question of imposing penalty does not arise at all. Furthermore, as Revenue did not filed any appeal for imposition of interest, matter relating to interest having attained finality, no order for its levy could have been passed by Commissioner Appeals. Consequently, the interest and penalty were set aside. As demand of cenvat credit denial was not contested, the same was upheld.

Prepared by:- Monika Tak 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com