TaxTMI 
TaxTMI 
2013 (9) TMI 24
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....06-EX (DB) and Application No.E/ROM/2981/2012-EX (DB); Central Excise Appeal Nos.3111/ 2006- EX (DB) and Application No.E/ROM/2980/2012-EX (DB); and Central Excise Appeal Nos.3046 /2006 - EX (DB) and Application No.E / ROM/2979 /2012-EX (DB) filed against the order dated 19.5.2006 passed by the Commissioner of Central Excise, Meerut-I, U.P. disallowing the CENVAT Credit. The appellant filed Civil Appeal Nos.3871-3873 of 2013, Bajaj Hindusthan Ltd. v. Union of India & Ors. against the judgment. By an order dated 8th May, 2013, Hon'ble Supreme Court dismissed the appeals as withdrawn:- "Mr. S.K. Bagaria, learned senior counsel appearing for the appellant, seeks leave to withdraw these appeals so as to approach the High Court for filing Review application as, according to him, certain relevant and important factual aspects, including the documents which are on record of the High Court, had not been considered by the High Court. Permission granted. It is made clear that if the appellant is also aggrieved by the order which might be passed in the Review application, if filed, it will be open to the appellant to challenge the order passed in the Review application as well as ....
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....on document (ER-1) by the department (serial no./page no.), the end use details of the same; the documents of which are available on record. (F) Because, it is submitted that perversity in the order of the authorities is reflected by the fact that the petitioner has availed Cenvat credit on a number of inputs namely angles, bars and rods, channels, flats, GP sheet, Joists, Plates, shapes & sections, Parallel Flanges/ Beams, Aluminium sheets/ coils, Rubber hose pipe & welding electrodes. The authorities did not deal with these inputs individually but disallowed Cenvat credit without even looking at the evidence in respect of each of the inputs. (This table is given at page 232, 236 & 237 of WP). (G) Because the petitioner has vide supplementary affidavit to this appeal submitted sample documents clearly showing the stepwise process of procurement of inputs against valid invoices, their entries in the store ledger and subsequent issue therefrom vide requisition slips clearly showing end use of the said input in the manufacture/ fabrication of the capital goods. For the sake of convenience of this Hon'ble Court the petitioner has prepared a summary chart (Annexure No.R7) on the ....
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....efinition of "capital goods" in rule 2 (a) (A) (iii) of the CENVAT Credit Rules 2004. These are all components, spares and accessories of capital goods and there was no necessity or requirement of these being covered by any particular heading or subheading. This position was clear from the rule itself. This position was also clarified by CBEC in circular No.276/110/96-TRU and was specifically taken by the assessee in its reply to the SCN. (b) The goods in question were begasse elevator roller chain, cane carrier, steam boiling set, cane carrier chain etc as per the show cause notices themselves and there was never any dispute about the nature and description of the goods. The only ground taken in the show cause notices was that these goods were not covered by the definition of capital goods and this allegation was ex-facie contrary to the definition itself. (c) It is further submitted that the finding of the Commissioner Excise that the record as per rules were not maintained and no private records also produced, ad the further finding that the details, like name, description, quantity, usage and tariff heading not mentioned, are perverse as the assessee has maintained all re....
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....ther used in the factory of the manufacturer". Therefore the entire premise of the High Court judgment is wrong. It is submitted that CESTAT has also committed the same mistake. (Q) Because, the HC/ Tribunal/Excise authorities ought to have appreciated that there was absolutely no scope of levy of any penalty under Section 11AC read with Rule 15. The SCN itself was based on ER1 submitted by the Appellants along with items wise details of Central Credit availed with full disclosure as per the requirement of law. There was no suppression at all and everything was disclosed. The only ground on the basis of which the penal provisions were invoked is that the details were not filed. It is submitted that this ground is absolutely perverse. The documents on record establish that every detail as required by law were provided. Further it is well settled that even assuming without admitting that on the basis of the records, even if the Commissioner Excise takes a different view about the allow ability of the credit, this can not be a ground to levy penalty under Sec 11AC of the Act. Therefore in the facts and circumstances of the case, the ingredients of Section 11AC were not fulfilled, n....
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....004 has been wrongly quoted in paragraph 25. The Court relied on the Rule as amended by notification dated 7.7.2009. The entire documents maintained in proof of the use of the goods and items for manufacture of capital goods were produced in reply to the show cause notice. Shri Bagaria submits that proof of each of the items brought inside the factory, requisitioned by concerned department, and its use in manufacture was established to claim the CENVAT credit. The Adjudicating Authority did not examine the documents. He states that he had requested the CESTAT and thereafter the High Court to remand the matter to the Adjudicating Authority to examine the documents of requisition from the stores and use of the goods in manufacture of capital goods for the purpose of satisfying himself that these goods and items were actually used in manufacture of capital goods. We did not find any error in the findings recorded by the Adjudicating Authority and the Tribunal that there was no dispute about the facts that in fabrication of capital goods CENVAT credit was taken on M.S Angles, Channels, Plates etc. The appellant, however, neither specifically intimated the department at any point of ....
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....were actually used in manufacture of capital goods and thereafter went on to observe that the conditions of availing CENVAT credit including the maintenance of documents and accounts and which include invoices used by a manufacturer for clearance of inputs or capital goods from his factory or depot or from the premise of the consignment agent of the said manufacturer or from any other premise from where goods are sold by or on behalf of the said manufacturer, and the inputs or capital goods as such could not be satisfied by producing relevant evidence. So far as question of levy of penalty is concerned, we relied on the judgment of coordinate Bench of the Court in Commissioner of Customs & Central Excise v. M/s Majestic Auto Limited (Central Excise Appeal No.142 of 2004 decided on 6.7.2012) in which it was held that the quantum of penalty equal to the duty as contemplated by Section 11AC is mandatory. There is no discretion with the Adjudicating Authority or Tribunal to impose a different amount of penalty. In a case where penalty is leviable under Section 11AC on fulfillment of the conditions, a penalty equal to the amount of duty is leviable. It is submitted by Shri S.K. Ba....