Berry Alloys Limited Vs Commissioner of Central Tax (CESTAT Hyderabad)
We find that the main ground for denying the credit as discussed in the impugned order is that the Appellant failed to furnish sufficient documentary evidence that the impugned items were used in fabrication of capital goods/accessories/parts/components. The Chartered Engineer’s Certificate though produced before both the authorities has not been considered at all. The said expert has given details regarding the manner and use of the impugned items. Further the fact of purchase of these items and their receipt in the factory of production is not in dispute. Revenue does not have a case that such purchased items were diverted by the Appellant in any manner. The first and foremost point is when the Chartered Engineer’s Certificate was produced before the Adjudicating authority, it was incumbent on the authorities to either contradict the Chartered Engineer’s Certificate or accept the same. In the absence of any contradictory Certificates on record holding otherwise that the inputs were used for fabrication of machinery, the non-consideration of the Certificate issued by the Chartered Engineer by the Adjudicating authority seems to be not in consonance with law. Further, receipt of goods and thereafter use for fabrication as per Chartered Engineer’s Certificate is not contested, but contested only on a point that the inputs do not fall under the category of capital goods and hence not eligible for Cenvat credit, will not support the case of the Revenue. Since the issue is no more res integra and is decided by the higher Courts, we find that the impugned order is unsustainable and is liable to be set aside. We find support from the judgement of Hon’ble Supreme Court in the case of CCE, Jaipur Vs. Rajasthan Spinning & Weaving Mills Ltd. [2010 (225) E.L.T. 481 (S.C.)], where the Hon’ble Supreme Court by relying on the decision of Commissioner of Central Excise, Coimbatore & Others vs. Jawahar Mills Ltd. & Others [2001 (132) ELT 3 (S.C.)], has dismissed the Appeal preferred by the Revenue by applying user test.
