TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 905
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....ricated building items, doors and office furnitures under Chapter Heading No. 9406, 7308 and 9403 by treating them as capital goods during the period 2007-2008 to 2010-2011 and 2011-2012 upto December, 2011. A Show Cause Notice was issued on 23/4/2012 to the respondent - assessee and the assessee filed the reply in the matter. The Assessing Officer has finally passed an Order in Original on 14/11/2013 and a demand to the tune of Rs. 36,90,921/- has been confirmed along with an equivalent penalty of Rs,36,90,921/-. The respondent - assessee, in turn, preferred an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has allowed the appeal of the assessee by order dated 3rd September, 2014. Thereafter, the Department has preferred an appeal before the Appellate Tribunal and the Appellate Tribunal by impugned order dated 26/2/2016, has dismissed the appeal preferred by the Department. Learned counsel for the appellant - Excise Department has vehemently argued before this Court that the appellant is a manufacturer of Pharmaceuticals and took credit of duty paid on wall panels and doors. He has also argued that the Adjudicating Authority has rightly held that the impu....
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....y shed, building or laying of foundation or making of structures for support of capital goods. Period 1.4.2011 onwards: Notification No. 3/2011-CE(NT) dated 1.3.2011 effective from 1.4.2011 amended the definition of inputs as under: (k) Input means (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or (iii)all goods used for generation of electricity or steam for captive use; or (iv) all goods used for providing any output service; but excludes- (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; (B) any goods used for- (a). construction of a building or a civil structure or a part thereof; or (b). laying of foundation or making of structures for support of capital goods, except for the provision of any taxable service specified in sub-clauses (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of Section 65 of the Finance Act: (C)Capital goods except when used as parts or comp....
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.... returns clearly showing availment of the impugned credit. Thus it is incorrect to say that it did not disclose the fact of availment of Cenvat credit on the impugned goods. These returns do not require listing of the goods on which the credit has been taken and therefore the respondent cannot be held guilty of suppression on the ground that it had not listed the goods on which credit was taken in the monthly return. No provision of law has been brought to our notice by ld. DR which requires the respondent to give list of goods on which credit is taken. The judgement in the case Tigrania Metal & Steel Industries P. Ltd. (supra) cited by ld. DR is clearly distinguishable because in that case the assessee had changed its stand and contentions. In the case of Rathi Steel & Power Ltd. (supra) cited by ld. DR the goods involved were steel items for supporting structures of capital goods and therefore did not leave any scope for ambiguity regarding inadmissibility of credit in relation thereto. In this regard, I need to emphasise that wilful misstatement/ suppression of facts is a mixed question of facts and law and the judgements on this issue are pronounced in view of the specific fact....
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....sofar as category No. (iii) ie., services of Overseas Commission, is concerned, the same is answered in favour of the Revenue and against the assessee. So far as present appeal is concerned, after extending the period of limitation under the proviso to Sec. 11 A and 11 AB of the Act, the Show Cause Notice is issued by the Joint commissioner, Central Excise, upon the respondent - assessee on the ground of contravention of provisions of Rule 2(1)(ii) and 9(2) read with Rule 3(1) of the Rules admittedly, the respondent - assessee had shown availment of Cenvat credit in part (iv) and (v) of E.R.-1 Returns filed by it. The appellant - Department has sought to justify its action by submitting that during the course of audit by the Office of the Accountant General, when a detailed examination of the material was done, it was realised that the respondent - assessee has availed Cenvat Credit on the services of all the three categories. The respondent - assessee has rightly pointed out that all the service providers charge the service tax on all the three services and such services sincere were rendered at the port of export, which was the place of removal, the services were in relation to m....