2017 (6) TMI 905 - HC - Central Excise

Tribunal denies CENVAT credit for building items & furniture - High Court upholds decision

The Commissioner (Now Principal Commissioner), Customs, Central Excise & Service Tax Versus ZYG Pharma Pvt. Ltd.

The Commissioner (Now Principal Commissioner), Customs, Central Excise & Service Tax Versus ZYG Pharma Pvt. Ltd. - 2017 (358) E.L.T. 101 (M. P.) Issues Involved:1. Admissibility of CENVAT credit on prefabricated building items, doors, and office furniture.2. Allegation of willful misstatement or suppression of facts by the assessee.3. Applicability of the extended period of limitation and mandatory penalty.Detailed Analysis:1. Admissibility of CENVAT Credit:The core issue revolves around whether the respondent-assessee, a manufacturer of pharmaceuticals, could claim CENVAT credit on prefabricated building items, doors, and office furniture under Chapter Heading Nos. 9406, 7308, and 9403, treating them as capital goods. The Tribunal examined the definition of 'input' under Rule 2(k) of the CENVAT Credit Rules for different periods and concluded that the goods in question were used to construct fixed structures (cabins) within the factory. These structures were not directly used in the manufacture of pharmaceuticals, thus disqualifying them as inputs. Consequently, the Tribunal held that CENVAT credit was not admissible for these goods.2. Allegation of Willful Misstatement or Suppression of Facts:The Excise Department contended that the assessee had willfully misstated or suppressed facts to wrongfully avail of CENVAT credit. However, the Tribunal found that the respondent had consistently disclosed the credit in its monthly returns, which did not require itemizing the goods on which credit was taken. The Tribunal emphasized that mere non-disclosure in returns does not constitute suppression or willful misstatement, referencing several judgments, including CCE Vs. Chemphar Drugs Liniments and Continental Foundation Joint Venture Vs. CCE, which clarified that something more than mere inaction or failure is required to invoke the extended period for suppression.3. Applicability of Extended Period of Limitation and Mandatory Penalty:The Tribunal held that the extended period of five years and mandatory equal penalty were not applicable due to the lack of willful misstatement or suppression. The Tribunal's decision was supported by the fact that the respondent's returns disclosed the availment of credit, and no specific legal provision required listing the goods for which credit was taken. Citing multiple precedents, including Commissioner Vs. Dynamic Industries Ltd. and Commissioner of Central Excise, Bangalore Vs. Sanmar Speciality Chemicals Ltd., the Tribunal concluded that the extended period and penalty were not justified.Conclusion:The Tribunal remanded the matter for de novo adjudication, limiting the scope to the normal period of one year and excluding the extended period and mandatory penalty. The High Court upheld the Tribunal's findings, emphasizing that no substantial question of law arose, and thus, the appeal was dismissed. The Tribunal's decision to disallow CENVAT credit on the impugned goods was upheld, but the imposition of extended period and penalty was not warranted due to the absence of suppression or willful misstatement by the assessee.