2023 (6) TMI 143

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....to be mentioned as "Tribunal"). 2. Material facts giving rise to the present appeal, briefly stated are that the appellant Company is engaged in manufacture of cotton yarn and holds the Central Excise Registration. It has been availing cenvat credit on capital goods and input services which are used in or in relation to manufacture of final products, under Cenvat Credit Rules, 2004 (for short "Rules, 2004"). During the period from August 2006 to April 2007 also, it had availed cenvat credit on certain capital goods/services. The auditors of Central Excise, Chandigarh-II conducted an audit of the record of the appellant on 26.08.2009 and observed that in contravention of the Rules, 2004, the appellant had availed certain cenvat credits. A show cause notice dated 03.08.2010 was issued against it. The appellant responded to the same. The adjudicating authority vide order dated 12.12.2011 confirmed demand of a sum of Rs. 15,16,552/- against the appellant besides imposing penalty of equivalent amount and claiming interest. The appellant preferred an appeal before the First Appellate Authority. The same was partly allowed vide order dated 04.02.2013 and demand of a sum of Rs. 7,67,....

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....allowed. The appellant deserved to retain cenvat credit availed by it on GP sheets etc. and that the order passed by the Tribunal was liable to be set aside. To fortify his argument, learned counsel for the appellant has placed reliance upon authorities cited as Thiru Arooran Sugars v. CESTAT, Chennai, 2017 (355) E.L.T. 373 (Mad.); Commissioner of Central Excise & Service Tax, Tiruchirapalli v. CESTAT, Chennai, 2017 (356) E.L.T. 201 (Mad.); Mundra Ports & Special Economic Zone Ltd. v. C.C.E. & CUS., 2015 (39) S.T.R. 726 (Guj.); M/s Vandana Global Limited v. Commissioner, Central Excise and Customs, Central Excise Building, Dhamtari Road, Tikrapara, Raipur (Chhattisgarh) and another, 2018 (16) G.S.T.L. 462 (Chhattisgarh) and Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd., 2010 (255) E.L.T. 481 (S.C.). 4. Per contra, it was argued by learned counsel for the revenue that the impugned order was well reasoned and did not warrant any interference. The appellant had claimed benefit of cenvat credit on GP sheets and aluminum sections on the plea that humidification plant was machinery as a whole and not a plant and GP sheets etc. used for making duct f....

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....of the Rules, 2004 reads as follows:- "Input means- (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1:- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2:- Inputs include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer" 8. It is relevant to mention here that ....

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....ules, 2004, therefore, these goods/items could not be treated as capital goods and did not fall under the category of same. Neither they could could be treated as components, spares or accessories of the capital goods. To form this opinion, the Tribunal is shown to have heavily relied upon Modern Steels Ltd.'s case (Supra) wherein cenvat credit had been claimed by the assessee on CTD bars, angles, channels, MS bar, joists and shapes which were used by it for its project work, by treating them as capital goods. The Tribunal had observed that since the words "plant" and the expression "components, spare parts and accessories of the plant" which were used in the erstwhile Rule 57 of Rules, 1944 were kept out of consideration in the new rules, therefore, these goods which fell under Chapter 72 could not be considered as spare parts, components or accessories and were not eligible for cenvat credit. 12. On perusal of the order passed by the Tribunal, it has been revealed that the judgment pronounced in Rajasthan Spinning & Weaving Mills Ltd.'s case (Supra) by Hon'ble Supreme Court had not been placed before and brought to the notice of the Tribunal. In that case, modvat credit had be....

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....the business of manufacturing of cement and clinker, was expanding its plant and for this purpose, it had purchased plant and machinery equipments and component from different suppliers. Foundations had been constructed which required use of cement, steel, MS plates, angles and channels etc. The appellant availed cement credit not only qua cement and steel but also vis-a-vis MS plates, angles and channels etc. as they were duty paid inputs. The revenue found fault with the same and issued show cause notices. It was held that the structures which was used to keep in position the plant and machinery, cement, as also, iron and steel which were used to erect foundations to hold the plant and machinery could not only be treated as "capital goods" but also be treated as "inputs" as these items supported the plant and machinery that was used in manufacturing process and were an integral part of the plant and machinery. Accordingly, the assessee was held entitled to get benefit of cenvat credit on the same as they fell within the scope and ambit of Section 2 (a) (A) and 2 (k) of the Rules, 2004. Similar observations were made by the High Court of Chhattisgarh in M/s Vandana Global Limited'....

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....ndment in Explanation 2 of Rule 2 (k) was neither clarificatory in nature nor retrospective in operation and was not applicable to the case of the appellant as it was during the period from August 2006 to April 2007 i.e. prior to the amendment dated 07.07.2009. In this regard, he has placed reliance upon Thiru Arooran Sugars's case (Supra) wherein the High Court of Madras observed that the amendment dated 07.07.2009 as made in Rule 2 (k) of Rules, 2004 could not be made clarificatory, upon Mundra Ports & Special Economic Zone Ltd.'s case (Supra) and M/s Vandana Global Limited's case (Supra) wherein similar observation was made. Learned counsel for the revenue could not point out any proposition of law to the contrary. Even otherwise, on a perusal of the notification whereby the amendment dated 07.07.2009 had been brought into force, there is no mention that it was either clarificatory in nature or retrospective in operation. Hence, we find no force in the argument that the Explanation 2 as which existed prior to the amendment dated 07.07.2009 and which included goods used in manufacture of capital goods which are further used in factory of the manufacturer as inputs should not be c....