TaxTMI 
TaxTMI 
2017 (7) TMI 753
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.... 440 (Tri.-LB). The present appellant then filed appeal before CESTAT, Chennai, which was remanded vide Final Order No.3435/2011 dated 10.01.2011 with directions, interalia, to examine the contentions of the appellant that they have used the impugned goods for fabricating parts and components of machinery and capital goods. The Bench observed that both the authorities below had not examined the matter in detail, with reference to the impugned items involved and various uses to which these items were put to, hence remanded the matter for fresh examination, in the light of the ratio of the LB decision in the case of Vandana Global Ltd. (supra). In denovo adjudication, the original authority vide OIO dated 22.12.2011, confirmed the demands of Rs. 25,30,492/- and Rs. 25,13,061/- as being ineligible credit availed on structures used for sugar machinery, along with interest thereon and imposed equal penalties on the appellant under Rule 15 of CCR 2004. On appeal, the Commissioner (Appeals) vide impugned order dated 11.06.2013 upheld the orders of the original authority, concerning demand of tax. Hence, appellants are before this forum. 2. Today when the matter came up for hearing, Id.....
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....11 (270) E.L.T.465 (S.C.). (vi) Vandana Global Ltd. Vs Commissioner of Central Excise, Raipur - 2010 (253) E.L.T. 440 (Tri. - LB). 3. It should also be noted that Hon'ble Madras High Court in the case of M/s. Thiru Arooran Sugars Vs. CESTAT, Chennai and Anr., reported in 2015-TIOL-1734-HC-MAD-CX and Hon'ble High Court of Gujarat in the case of Mundra Ports & Special Economic Zone Ltd. Vs. Commissioner of Central Excise and Customs reported in 2015 (39) STR 726 (Guj.) have laid down law relating to Cenvat credit on the aforesaid goods. If the principles laid down in the aforesaid cases are given due regard to examine the usage of the impugned goods as claimed by the appellant, that shall resolve the dispute at the grass root. 4. Learned Counsel at this stage says that sending the matter to the authority shall serve no useful purpose. It is made clear that Tribunal is not in favour of any remand when the first remand direction was not carried out by the adjudicating authority properly. Therefore, to reduce the litigation, learned adjudicating authority is directed to provide a report containing the following :- (i) Quantity of the goods used and ....
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.... sought to nail the tax payer on the ground that they were not able to produce in 2016-17, documents and registers which were more than thirteen years old, of 2003 vintage. It is even more interesting to note that the SCNs themselves states that the apparent irregularity came to light only at the time of verification of Cenvat Credit account by the Department. Nonetheless, if the returns have been regularly filed such a doubt should have been detected or got investigated at the time of filing of returns and certainly not thirteen years later. 5.3 Further, the issue per se has been confirmed by the lower authorities relying on the ratio of the decision in the case of Vandana Global Ltd., (supra). However, the ratio of Vandana Global Ltd., has been distinguished and has evolved over the years. In the case of Mundra Ports and Special Economic Zone Ltd. Vs. CCE - 2015 TIOL-1288 HC-AHM-ST, the Hon'ble High Court of Gujarat distinguished the decision of Tribunal in Vandana Global Ltd., in para-8 of its judgment, as follows :- "8. Mr. Y.N. Ravani, learned counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limit....
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..... 5.6. The relevant portion of the last mentioned decision in the case of Singhal Enterprises is worthy of reproduction :- "13. Now turn to the question, whether credit is admissible on various structural steel items, such as, MS Angles, Sections, Channels, TMT Bar, etc., which have been used by the appellants in the fabrication of support structures on which various capital goods are placed? The same stands denied by the lower authority. The learned DR has sought disallowance of the same by citing the decision of the Larger Bench in the case of Vandana Global Ltd. (supra) and other judgments. Further, he has brought to our notice and emphasized the amendment carried out in Explanation-II to Rule 2(a) which defines the "Input" w.e.f. 7-7-2009. It has further been pleaded that the Cenvat credit claimed for the period prior to this will be covered within the decision of the Larger Bench in the case of Vandana Global Ltd. (supra). 14. The Larger Bench decision in Vandana Global Ltd.'s case (supra) laid down that even if the iron and articles were used as supporting structures, they would not be eligible for the credit. Considering the amendment made w.e.f. 7-7-2009 as ....
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....much necessary to ascertain whether the disputed items were in fact used in the structural. In response, Id. Advocate contends that this is the very allegation in the SCN in para-3 wherein Rule 2 (a) of CCR, 2004 was reproduced. In any case, verification has been conducted on two occasions after intervention of this Bench and the Interim order dated 26.10.2015 referred (supra) however, has already discussed such verification could not make any headway for lack of documents at the appellants. 7.1 The period of the dispute is August 2006 to November 2007 in one case (tax demand of Rs. 23,30,492/-) and November 2003 to August 2008 (tax demand of Rs. 25,13,601/-). 7.2 It is thus seen that the entire dispute has been festering, atleast for the last thirteen years, without any light at the end of the dispute tunnel. While the impugned SCNs alleged that the appellants have wrongly availed Cenvat credit on MS sheets, angles, MS plates, channels etc., on the grounds that they are structural materials used in construction, no further illumination is extant in those notices to support such allegation. Nor is there any whisper in any of the notices, as to the exact manner of usage that t....