Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1401

Credit on H.R.Sheets, M.S. Plates and angles used in fabrication of tank covered under capital goods is admissible.

 
Case:-  SAKTA INX. (INDIA) LTD. Vs. C.C.E., JAIPUR-I
 
Citation:-  2012 (284)E.L.T. 701 (Tri. - Del.)

Brief Facts:-H.R. Sheets, M.S. Plates and angles were used in fabrication of oil tank which was a capital goods coming under Chapter 73 of Central Excise Tariff Act, 1975. Revenue denied the credit of the same on the ground that cement and steel used in the manufacture of capital goods viz., storage tank, if any structure for support of capital goods is constructed and steel and cement is used for such support, the assessee is not entitled to the bene­fit of cenvat credit on the duty paid on such cement and steel. Aggrieved by the order of lower appellate authority appellant filed appeal before Tribunal.
 
Appellant’s Contention:-Appellantsubmits that H.R. Sheets, M.S. Plates and angles were used in fabrication of oil tank which was a capital goods coming under Chapter 73 of Central Excise Tariff Act, 1975. The Tank so fabricated was to serve the purpose of manufacture. That was also not embedded to earth. Fur­ther he submits that the photographs filed clearly indicates that the tank was not in any way an immovable property because that can be dismantled for place­ment wherever required. Once the goods in question was not embedded to earth that comes within the frame work of Chapter 73 of the Tariff Act. Appellant further submit that such an issue was precisely before Hon'ble High Court of Karnataka in the case of Commissioner of Central Excise, Bangalore v. SLR Steels Ltd. reported in 2011-TIOL-892-HC-KAR-CX. = 2012 (280) E.L.T. 176 (kar.).
 
The appellant also reads paras 7 & 8 of the judgment to buttress his claim which reads as under:-
 
7. A perusal of the aforesaid provision makes it. very clear though storage tanks may be immovable property and the pollution control equipment are included within the definition of 'capital goods', input as defined in Rule 2(k) makes it clear that 'input' includes goods used in the manufacture of capital goods which are further used in the factory of the manufacture. Therefore, the input is not necessarily to be used in the manufacture of final product. By virtue of explanation 2 - goods used in the manufacture of capi­tal goods which are further used in the factory of the manufacturer of capi­tal goods which are further used in the factory of the manufacturer also falls within the definition of input. In 2009, this explanation has been amended to the following effect:
 
"but shall not include cement, angles, channels. Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods"
 
8. Therefore, the intention of the Legislature is very clear that it is only the 'inputs' used in the manufacture of construction of capital goods which is construed as input and cenvat credit is available on the duty paid in pur­chase of such inputs. If the cement, angles, channels, Centrally Twister De­form bar (CTD) or Thermo Mechanically 6 Treated bar (TMT) and other items are used in the construction of factory shed, building or laying of foundation, the duty paid on such items the assessee would not be entitled to cenvat credit. Similarly, though the assessee is entitled to cenvat credit of cement and steel used in the manufacture of capital goods viz., storage tank, if any structure for support of capital goods is constructed and steel and cement is used for such support, the assessee is not entitled to the bene­fit of cenvat credit on the duty paid on such cement and steel. Therefore, there is not ambiguity in any of these provisions. When once storage tank and pollution control equipment constitutes capital goods and any raw ma­terial purchased for construction of those goods, the duty paid could be utilised as a cenvat credit by the assessee notwithstanding the fact that the storage tank is as immovable property. Therefore, the appellate authority committed a serious error firstly in holding that the storage tank is an immovable property and secondly, on the ground that it cannot be knight and sold in the market, the criteria which is totally unwarranted under the circumstances. Therefore, the tribunal was justified in setting-aside the said order and holding that the assessee is entitled to the benefit."
 
Respondent’s Contention:-The Respondent supports the order passed by the Commissioner (Appeals).
 
Reasoning of Judgment:- The Tribunal heard both sides and perused the record. The Tribunal has given opportunity toRevenue to test the case in the light of the judgment of Hon'ble High Court of Karnataka and also to explain whether the factual background of the case of the appellant is covered by aforesaid judgment. The appellate order nowhere disputes as to the affixation of the capi­tal goods to earth. It is only a mechanical disallowance of cenvat credit by first appellate order without examining the use of the inputs in fabrication of the oil tank. Emergence of the oil tank is an admitted fact. That is also a capital goods under Chapter 73 of Tariff Act, 1975. Therefore, there should not be denial of Cenvat Credit on the input used. Hon'ble High Court of Karnataka examined Rule 2(k) of Cenvat Credit Rule 2004 in para 7 of the judgment and also found that the storage tank was capital goods which made the appellant in that case eligible to input credit. For the fact that the oil tank was not embedded to earth, the appellant is entitled to the Cenvat credit on inputs in the peculiar circum­stances of the present case.
 
Decision:- Appeal is allowed.
 
Comment:- The analogy drawn from this case is that often there is mechanical disallowance of cenvat credit by the department without even examining the facts of a particular case. Credit was clearly admissible in the present case as H.R. Sheets, M.S. Plates and angles were used in the fabrication of tank that was very well covered in the definition of capital goods but unnecessarily the credit was denied to the assessee.
 

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