2015 (12) TMI 9

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....torage of raw material and by-product. The appellant availed CENVAT credit of input items like steel plates used for fabrication of storage tank. They took credit on angles, channels, coils used for fabrication of tanks to store water. They also took CENVAT credit on foundation bolt used for installation of these stack and aluminium sheets used for thermal insulation of pipes, tubes, machines. The appellant by the aforementioned letter dated 12/7/05 duly informed the Supt. of the range, which letter was acknowledged by the Inspector in the range office, wherein it is categorically informed that the appellant is taking CENVAT credit of duty paid on inputs like steel plates, foundation bolt, HR steel coils, M.S. angles, channels, C.R. Sheets,....

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...., CENVAT credit availed, description of main item in the document, quantity and also the unit of measurement. The appellant also mentioned accordingly that steel plates are issued for fabrication of 2 bullets. That after lapse of 5-6 years the Revenue in the course of audit sometime in the year 2011 objected to the taking of CENVAT credit and thereafter issued show-cause notice dated 9/90/2011, invoking the extended period of limitation. 2. From a perusal of the show-cause notice it is seen that it is mentioned in para 2 that the appellant have taken CENVAT credit of 50% in the financial year 200506 and the remaining 50% in the next financial year 200607 as capital goods. For invoking the extended period of limitation it been observed in....

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....ee, and the assessee availing CENVAT Credits on such steel plates as capital goods, itself, shows the intention on the part of the assessee to avail in-admissible CENVAT Credits. Similar modus was adopted for availing CENVAT credit on the goods mentioned at Annexure B & C to the Show-Cause Notice Therefore, above mentioned CENVAT Credit wrongly taken is required to be recovered along with interest by invoking the extended period of limitation as envisaged in proviso to Section 11A (5) (erstwhile 11A (1) and 11AA (erstwhile Section 11AB) of the Central Excise Act, 1944 read with Rule 14 of the CENVAT Credits Rules, 2004." 3. Heard the parties. 4. The adjudicating authority adjudicated the show-cause notice and dropped the show-cause no....

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....ns. The learned Commissioner (Appeals) on the question of limitation in para 12 and 13 of the impugned order, without disputing the facts on record held that the extended period of imitation is applicable in facts of the case. "12. The fact of the availment of CENVAT credit on ineligible goods like steel plates, channels, angles foundation bolt, Aluminium coils etc., came to the knowledge of the department only after the audit was conducted. The respondents have relied upon the letters dated 12.07.05 & 20.03.06 as evidence that they had brought the facts to the notice of the Department. However on perusal of the said letters nowhere it is observed that the respondents have intimated the availment of credit on items like Aluminium c....

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....sibility to comply with all requirements, and department is not expected to find about in all cases  Section 11A of Central Excise Act, 1944. The Supreme Court in the case of Shri Vivekanand Mills Ltd. reported in 1999 (109) ELT 32 (SC) held that, the burden is on appellants (party) to affirmatively establish the facts claimed are true and in case, burden having been not discharged, the contentions or arguments have to be rejected." 13. In the case of M/s FARIDABAD METAL UDYOG (P) LTD. V/s CCE, DELHI-II - 2001 (138) ELT 1021 (Tri- Del.) it was held that - "As rightly observed by the original adjudicating authority the case has come into notice of the Revenue based upon the verifications and investigations conducted b....

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....15012002 wherein it is provided in para-5 (IPA Plant)  huge tanks made of metal for storage of petroleum products in oil refineries on installations  these tanks though not embedded in the earth are erected at site, stage-by-stage and after completion they cannot be physically moved. On disposal they have necessarily to be dismantled and sold as metal sheets/scrap. It is not possible to assemble the tank once again. Such tanks, therefore, not liable and cannot be considered movable goods. Further reliance is placed on instruction No. 267/11/2010CX dated 08.07.2010 wherein with respect to availability of CENVAT credit on inputs used in manufacture of capital goods it is provided that the credit on inputs used in manufacture of capi....