TaxTMI 
TaxTMI 
2022 (8) TMI 228
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....nd of Central Excise duty of Rs.3,51,36,257.48/- along with applicable interest and equivalent penalty. The said demand has been raised consequent to denial of Cenvat Credit on capital goods. Excise Appeal No. 76624/2016 has been filed by the ex-employee, Sri M. L. Rathi, against imposition of personal penalty of Rs.10,00,000/- vide the above adjudication order. Since the issues in both the appeals arise out of the aforesaid adjudication order, the same are taken up for disposal by this common order. The period in dispute in these appeals are from February 2010 to April 2012 during which period credit has been availed by the appellant company on capital goods which has been disputed by the Department. 2.1 Briefly stated, the facts of the....
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....tion whereby the availment of credit was disputed mainly on the grounds that - (i) the contract for construction of CPP is EPC Project and that separate work orders/ contracts have been entered as a matter of mutual convenience, (ii) the appellant has not made payment to the other manufacturers (OEM) who have actually supplied the said goods under the cover of central excise invoices but the payment has been made to the Contractor against their commercial invoices, (iii) the goods on which credit has been availed by the appellant has actually been used by the Contractor for providing services and not used by the appellant, (iv) since the Contractor is not eligible to avail credit on subject goods, credit cannot be held to be eligible in the....
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....onditions have been duly complied in their case. (iv) The observations made by the Ld. Commissioner in Para 91 of the impugned order that the goods on which credit has been used by the Contractor for providing services and not by the Appellant is erroneous. The subject contract is for construction and set up of CPP which involves supply of machines and equipment and for provision of service for fabrication, erection, commissioning, and installation. The goods which have been procured by the Contractor from OEMs and consigned to the factory of Appellant is for the purpose of use in the factory of the Appellant for producing power to be used in the manufacture of final products on which Central Excise duty has been paid. (v)....
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....n of CCE v. ITC Ltd. 2013 (31) taxmann.com (KOL-CESTAT) wherein it is has been held that if the assessee has disclosed availment of CENVAT Credit in ER-1 returns, suppression of facts cannot be alleged and demand beyond normal period is not sustainable. 4. The Ld. A.R. appearing for the Revenue reiterated the findings made by the Ld. Commissioner in the impugned order and prayed that the appeals be rejected being devoid of any merit. 5. Heard both sides and perused the appeal records. 6.1 We find that the issue to be decided in the present appeals is that whether the Appellant company is legally entitled to avail credit on capital goods. The availment of credit on input service is not in dispute which has been duly allowed by the D....
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....s held that the Contractor could not pass on the credit to the appellant, which in our view is wholly erroneous in facts, since not relevant in the present subject matter. 6.4 The Ld.Commissioner has nowhere disputed the fact, as submitted by the appellant in the course of adjudication, that the duty paid capital goods in question have been duly received at the factory premises of the appellant. It is relevant to reproduce the portion of findings made by the Ld. Commissioner in para 82 of the impugned order as below:- "......UML availed credit of duty against invoices issued by the manufacturer but payments were never made to them against the same. It was released against a separate set of documents issued side by side by CVPL. ....
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....xcise invoices issued by the OEM or the commercial invoice issued by the Contractor who has procured the goods on behalf of the Appellant for use in the power plant is completely irrelevant. The Ld. Commissioner has thus made a fundamental error while taking into consideration the above payment related aspect while deciding the eligibility to avail credit on capital goods. 6.7 We have perused, on sample representative basis, the excise invoice issued by M/s. Triveni Engineering & Industries Limited appearing in page no. 294 & TD Power Systems Pvt Ltd appearing in page no. 300, which clearly records 'Usha Martin Limited' as 'consignee' through the buyer 'Cethar Vessel Ltd'. Further, the GRN and consignments notes are also appearing eviden....