TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 764
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....ble Karnataka High Court in the case of SLR Steels while coming to its conclusion that the credit on the disputed items is available as inputs having been used in the fabrication of storage tanks though in the facts and circumstances of the instant case, the aforesaid decision is not applicable? (iii) Whether in terms of Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004 the respondent is eligible to avail Cenvat credit on the disputed items used in fabrication of storage tanks within the factory premises? (iv) Whether the Learned Tribunal before setting aside the order of the adjudicating authority on the basis of the certificate of Chartered Accountants' dated 23.08.2016 ought to have considered that the said certificate was never produced before the adjudicating authority and the contents of the certificate remained unverified by the Department and as such the order passed by the Learned Tribunal is bad in law? (v) Whether the Learned Tribunal committed gross error in not appreciating that the Chartered Accountant's certificate is, at best, only corroborative evidence and the same cannot be sole or conclusive evidence particularly when there is no specific provisi....
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.... after considering the reply/objections filed to the show cause notice by order dated 26.05.2016 confirmed the demand, levied interest and also imposed equal penalty to the amount of Cenvat credit availed by the assessee. Aggrieved by such order, the assessee filed appeal before the tribunal. The tribunal by the impugned order has allowed the appeal and set aside the order passed by the Commissioner. 7. The Learned Senior Standing Counsel for the revenue contended that the assessee had taken credit on capital goods under Tariff Heading no. 72 and 73 which was not admissible as per Rule 2 (k) read with Explanation 2 of the 2004 rules, since the capital goods were inputs of the assessee and these inputs used in the factory of the manufacture were to be treated as inputs and not as capital goods. Further it is submitted that the tribunal ought to have appreciated the fact that the capital goods on which the assessee availed Cenvat Credit do not fall within the definition of capital goods as they are neither goods falling under chapter 82, 85, 90 and Heading No. 68 of the First Schedule to the Central Excise Tariff Act, 1985, nor they are components, spares and accessories of such cap....
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....red Engineer certificate should not have been disregarded and it was incumbent upon the adjudicating authority to either reject the certificate or accept the same but could not have ignored the certificate. Therefore, it is submitted that the tribunal had rightly allowed the appeal filed by the assessee. The Learned Counsel for the assessee submitted that the issue which is subject matter of this appeal is entirely factual and no questions of law arises for consideration in this appeal and in this regard reliance was placed upon the decision in the case of CCE, Bilaspur Vs. Singhal Enterprises Private Limited reported in 2018 (359) E.L.T.313 (Chhattisgarh) which decision was affirmed by the Hon'ble Supreme Court in the decision reported in 2018 (360) E.L.T. A125. 10. We have heard the Learned Counsels for the parties and carefully perused the materials placed on record. On going through the order passed by the adjudicating authority dated 26.05.2016, we find that the observation made by the tribunal that the adjudicating authority glossed over the facts is incorrect. We say so because the adjudicating authority had taken into consideration the allegations in the show cause notice,....
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....relied on the decisions in the case of M/s. - Saraswati Sugar Mills v/s CCE, Delhi-III reported at 2011 (270) ELT-465 (SC), CCE, Meerut-II V/s Dhampur Sugar Mills Ltd. (2012) (280) ELT-70 (Tri-Delhi)). The adjudicating authority also referred to the clarification given by the Central Board of Excise and Customs, dated 08.07.2010 clarifying that the inputs have to be covered under the definition of input under the "CENVAT Credit Rules 2004" and used in or integrally connected with the process of actual manufacture of the final product for admissibility of Cenvat credit. Therefore, the adjudicating authority concluded that the items on which the credit had been availed by assessee would not fall within the definition of capital goods. The adjudicating authority further noted that the assessee had not produced documents/evidence in support of their contentions and therefore confirmed the proposal in the show cause notice. 13. We have referred to the findings recorded by the adjudicating authority to support our conclusion that the tribunal committed an error in holding that the adjudicating authority had glossed over the submissions made by the assessee. The tribunal granted relief t....
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....e details and there after issued the certificate. 14. Thus, in our view certificate which was produced before the tribunal, appears to have been produced for the first time before the tribunal. Identical was the fact in the case of Delhi Motor Vehicles Private Limited (supra) in which the Chartered Accountant certificate was produced by the assessee with cost analysis which was produced after the adjudication order was passed which was taken into consideration by the Tribunal as fresh evidence and for examining the correctness, the matter was remanded back to the adjudicating authority. The assessee carried the matter to the Hon'ble Supreme Court. It was held that the effect and implication of the contents of the certificates are required to be examined in the light of any other evidence that may be available on record or could be made available and the parties are required to be given an opportunity to adduce such other materials which may be produced by either of the parties in respect of the dispute between them so as to come to an appropriate finding on all the issues. In the said case, the Hon'ble Supreme Court remanded the matter to the tribunal in stead of the adjudicating ....