Larsen and Toubro Limited Vs. Cc and Ce - Court Judgment

Excerpt:

.....have explained that all the above items are parts of machinery. however, since the detailed use of these items has not been explained satisfactorily before the authorities below and since the appellants pleaded that sufficient opportunity may be given to them in order to satisfy the authorities below regarding the exact use of these items, in the interest of justice, the appellants should be given one more opportunity to explain the use of the above-mentioned items; for this purpose, i remand this aspect to the jurisdictional assistant commissioner/deputy commissioner who shall pass fresh orders in accordance with the law after hearing the appellants. they are permitted to produce whatever evidence they consider necessary to support their claim that these items are in the nature of capital goods or inputs, entitled to credit.5. in appeal no. e/156/02/mum, credit of rs. 6,462 has been denied on sgr motor on the ground that the credit was availed on the strength of original invoice. this denial is sustainable in the light of the larger bench decision in the case of balmer lawrie & co. ltd., v. cce, 2000 (116) elt 364. the jurisdictional assistant commissioner/deputy.....

Judgment:

1. After hearing both sides for sometime on the application for waiver of pre-deposit in E/S/362/03/Mum, in Appeal No. E/476/03/Mum, I found that it was possible to decide the appeal itself at this stage; hence after waiving the pre-deposit I proceed to hear and dispose of Appeal No. E/476/03/Mum alongwith connected Appeals No. E/155 & 156/2002/Mum.

2. On hearing both sides, I note that credit on High Chrome Grinding Media is required to be extended as the ground for denial of credit, viz., that declaration filed by the appellant was in terms of Rule 57T for capital goods while the items were to be found inputs under Rule 57A requiring declaration under Rule 57G is not sustainable. It has already been held by the Tribunal that non-filing of a separate declaration for inputs is not a ground for denial and the declaration under Rule 57Q can be treated as sufficient for the purpose of extending modvat credit; hence I hold that the appellants are entitled to credit of Rs. 3,63,488, Rs. 4,17,361 + Rs. 4,17,938, totalling to Rs. 11,98,787.

3. The credit of Rs. 1,60,936 on lubricants and Rs. 84,497 on water treatment chemical issue arising in Appeals No. E/155 & 156/02/Mum respectively, is also admissible to the appellant for the same reason.

4. As regards denial of credit on items such as Wear Plates, Steel Plates, Abrasion Resistant Steel Plates, Hardo Steel Plates, unprocessed polyester poliotide fabrics, Lining plates, Cerwool ceramic fibre blankets, Aluminium corrugated sheets and Emco Simparoll, I find that the reason for denying modvat credit is that items are in the nature of parts of structurals. The appellants have explained that all the above items are parts of machinery. However, since the detailed use of these items has not been explained satisfactorily before the authorities below and since the appellants pleaded that sufficient opportunity may be given to them in order to satisfy the authorities below regarding the exact use of these items, in the interest of justice, the appellants should be given one more opportunity to explain the use of the above-mentioned items; for this purpose, I remand this aspect to the jurisdictional Assistant Commissioner/Deputy Commissioner who shall pass fresh orders in accordance with the law after hearing the appellants. They are permitted to produce whatever evidence they consider necessary to support their claim that these items are in the nature of capital goods or inputs, entitled to credit.

5. In Appeal No. E/156/02/Mum, credit of Rs. 6,462 has been denied on SGR Motor on the ground that the credit was availed on the strength of original invoice. This denial is sustainable in the light of the Larger Bench decision in the case of Balmer Lawrie & Co. Ltd., v. CCE, 2000 (116) ELT 364. The jurisdictional Assistant Commissioner/Deputy Commissioner shall also consider the issue of whether any penal action can be taken against the appellants.

6. The credit of Rs. 2,67,903 (in Appeal No. E/155/02/Mum) and Rs. 52,309 (in Appeal No. E/156/02/Mum) availed on LDO and Lubricants on the basis of IOCL invoices is also allowed to the appellants as the ground for denial viz., that IOCL has wrongly passed on the credit is not a ground raised in the show cause notice.

7. As regards the credit on Phospho Gypsum (Rs. 25,496 in Appeal No.E/476/03/Mum) and Rs. 12,882 (in Appeal No. E/156/02/Mum) the ground is that the appellant did not file the requisite declaration for inputs, I remand this issue for fresh decision by the jurisdictional Assistant Commissioner/Deputy Commissioner in the light of the Tribunal's decision in the case of Kamkhya Steels (P) Ltd., v. CCE, Meerut, 2000 (121) ELT 247 (LB) wherein the Tribunal remanded the case for re-examination of eligibility to modvat credit sought to be denied on the ground of non-filing of declaration in the light of the amendment to Rule 57T and 57G as per the Notification No. 7/99-CE(NT) dated 9.2.99 and the concerned CBEC circulars, and the Tribunal's decision in J.B.M Tools Ltd. v. CCE, Pune, (i) Credit on High Chrome Grinding Media, Water Treatment Chemicals and LDO & Lubricants is admissible to the appellants.

(ii) Credit on items held to be parts of structurals, but claimed to be parts of machinery is to be re-considered by the jurisdictional Assistant Commissioner/Deputy Commissioner.