Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case law/2014-15/2213

Eligibility of credit of duty paid on welding electrodes used for repair and maintenance of machinery.

Case:- SAMRUDDHI CEMENT LTD. Vs COMMISSIONER OF CENTRAL EXCISE, INDORE
 
Citation:- 2013 (297) E.L.T. 562 (Tri. - Del.)
 
Brief facts:- The appellant were engaged in the manufacture of cement chargeable to Central Excise duty. The point of dispute in this case was as to whether during the period from January, 2008 to August, 2008, they were eligible for credit of Central Excise duty paid on welding electrodes used for repair and maintenance of plant and machinery. The department was of the view that the appellant were not eligible for credit in respect of these items as they were neither capital goods nor inputs. Accordingly, the show cause notice was issued for recovery of credit of Rs. 2,19,439/- availed by them in respect of this item. The show cause notice was adjudicated by the Assistant Commissioner vide order-in-original dated 25-5-2009 by which he confirmed Cenvat credit demand along with interest and imposed equal amount of penalty. On appeal to the Commissioner (Appeals), this order of the Assistant Commissioner was upheld vide Order-in-Appeal dated 23-9-2009 against which this appeal had been filed.
 
Appellant’s contentions:- Shri Hemant Bajaj, Advocate, learned Counsel for the appellant submitted that the issue in this case already stands decided in favour of the appellant in view of the judgment of Hon’ble High Court of Chhattisgarh in the matter of Ambuja Cements Ltd. v. CCE, Raipur reported in2010-TIOL-309-HC-CHHATTISGARH-CX = 2010 (256) E.L.T. 690 (Chhattisgarh) and also by the judgment of Hon’ble Karnataka High Court in the case of CCE, Bangalore v. Alfred Herbert (India) Ltd. - 2010 (257)E.L.T.29 (Kar.)and Hon’ble Rajasthan High Court in the case of Hindustan Zinc Ltd. - 2008 (228)E.L.T.517 (Raj.)had also taken the same view and held that Cenvat credit was available on welding electrodes used for repair and maintenance of plant and machinery. In view of these judgments of various High Courts, the impugned order was not sustainable.
 
 
Respondent’s contentions:-Shri R.K. Mathur learned DR supported the impugned order, reiterating the findings of the Commissioner (Appeals) and pleaded that Hon’ble Andhra Pradesh High Court in the case of Sree Rayalaseema Hi-Strength Hypo Ltd. v. CCE & C, Tirupati - 2012 (278) E.L.T. 167 (A.P.) had taken a contrary view, that Cenvat credit cannot be claimed under Rule 2(k) on the duty paid on welding electrodes used for repairs. Therefore, same cannot be treated as input or capital goods. He, therefore, submits that there was no infirmity in the impugned order.
 
 
Reasoning of judgment:- The Hon’ble judge held that though there was a recent judgment of Hon’ble Andhra Pradesh High Court in the case of Sree Rayalaseema Hi-Strength Hypo Ltd. v. CCE & C, Tirupati, wherein contrary view had been taken but Hon’ble High Court of Chhattisgarh, Hon’ble Karnataka High Court and Hon’ble Rajasthan High Court have held that welding electrodes used for repairs and maintenance of plant and machinery would be eligible for Cenvat credit. Moreover, the definition of ‘input’ as given in Rule 2(k) of Cenvat Credit Rules, 2004 covers the goods used “in or in relation to manufacture” of final products, whether directly or indirectly which was a much wider than the expression “used in manufacture”. While repair or maintenance by itself was not a process of manufacture, this activity certainly had nexus with manufacture of final product and would be covered by the expression - “used in or in relation to manufacture of final product” as no manufacturing activity was possible with malfunctioning machinery. In view of this, judge was of the view that the impugned order was not sustainable.

In view of the above findings, the appeal was allowed.

Decision:- Appeal was allowed.
 
Comment:- The analogy drawn from the case is that definition of ‘input’ as given in Rule 2(k) of Cenvat Credit Rules, 2004 covers the credit of goods used “in or in relation to manufacture” of final products. While repair or maintenance by itself was not a process of manufacture, this activity certainly has nexus with manufacture of final product and would be covered by the expression - “used in or in relation to manufacture of final product” as no manufacturing activity was possible with malfunctioning machinery. Thus the assessee was eligible for taking credit of Central Excise duty paid on welding electrodes used for repair and maintenance of plant and machinery as this fall under the definition of inputs.

Prepared by: Ranu Dhoot
 

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