Cenvat credit eligible on Materials for making Foundation of Machineries in factory premises

Hng Float Glass Ltd Vs C.C.E. & S.T. (CESTAT Ahmedabad)

We find that the adjudicating authority has denied the cenvat credit in respect of Cement, TMT bars, MS angles, channels, beams, racks, plates, etc. used for making foundation of machineries installed in the factory premises and also for making structures for support of the plant. The credit was denied mainly on the ground that the amendment in Rule 2(a) brought by notification no. 16/2009-CE (N.T.) barred the availment of cenvat credit on the goods in question from retrospective effect. This finding of the adjudicating authority is based on the larger bench judgment of the tribunal in the case of VANDANA GLOBAL LTD. In this regard, we find that much water was flown on this issue and not only the VANDANA GLOBAL LTD. larger bench judgment was upset by the Hon’ble Chhattisgarh High Court in the case of VANDANA GLOBAL LTD.- 2018 (16) GSTL 462 (Chhattisgarh) but also by various subsequent judgment mainly by jurisdictional high court in the case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD.- 2015 (39) S.T.R. 726 (Guj.).

In view of the above legal position, the amendment of notification no.16/2009-CE (N.T.) was held to be inapplicable for the period prior to the date of notification i.e. 07.07.2009. On this ground, the denial of cenvat credit by the adjudicating authority is not legal and correct.

As regard the period post 07.07.2009, it is the submission of the appellant that the credit subsequent to this date was already taken prior to 07.07.2009. In this fact, we are of the opinion that the credit was already accrued before the amendment of Rule 2(a) of Cenvat Credit Rules, 2004 therefore, the amendment of notification no.16/2009-CE (N.T.) shall not apply on such credit which was accrued prior to 07.07.2009. Moreover, the appellant have claimed the credit under capital goods. Such capital goods were as parts and components used as support structure for plant and machinery erected and installed in the factory of the appellant. On this ground also the credit is admissible to the appellant accordingly, we are of the considered view that appellant are entitled for cenvat on the goods in question as per the settled legal position in the various judgments cited by them particularly in the case of Hon’ble Chhattisgarh High Court judgment in VANDANA GLOBAL LTD. and Hon’ble Gujarat High Court in the case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD. (supra).

FULL TEXT OF THE CESTAT AHMEDABAD ORDER

The issue involved in the present case is that whether the appellant is entitled for cenvat credit in respect of Cement, TMT bars, MS angles, channels, beams, racks, plates, etc. used for making foundation of machineries installed in the factory premises and for making structure for support of the plant and machinery qualified as capital goods as defined in Rule 2(a) of Cenvat Credit Rules, 2004 for the period April 2008 to April, 2010.

02. Shri T.V. Venkateswaran along with Ms. Nikita Jain, learned Chartered Accountant appearing for the appellant submits that the adjudicating authority has denied the credit on the goods in question mainly on the ground that the definition of input has been amended vide Notification No.16/2009-CE (N.T.) dated 07^th July, 2009 whereby, the goods in question have been excluded from the purview of definition of inputs and the same was retrospective in the light of the larger bench decision in the case of VANDANA GLOBAL LTD.- 2010 (253) ELT 440 (Tri-LB). He submits that firstly, all the goods were used for the manufacture of capital goods within the factory therefore, either for manufacturing of capital goods or used as parts and accessories of capital goods i.e. machinery therefore, the credit is admissible. The judgment of VANDANA GLOBAL LTD. has been reversed by the Hon’ble Chhattisgarh High Court wherein, it was categorically held that the amendment of notification no.16/2009-CE (N.T.) cannot be applied retrospectively. This was further reinforced by the hon’ble Gujarat High Court in the case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD.-2015 (39) S.T.R. 726 (Guj.).

2.1 He further submits that for the period post 07.07.2009 since the appellant have claimed the goods as capital goods, the cenvat credit of the same is not adversely affected by the mischief of amendment made in notification no. 16/2009-CE (N.T.). He further submits that post 07.07.2009 the appellant have availed 50% credit and for the remaining 50% credit was availed earlier therefore, it cannot be said that the credit was availed post amendment. In support of his submission, he placed reliance on the following judgments:-

• COMMISSIONER OF CENTRAL EXCISE V. GUJARAT AMBUJA CEMENT LTD. [2008 (230) E.L.T. 221 (H.P.)]
• SARJOO SAHKARI CHINI MILLS LTD. V. COMMISISONER OF C. EX., LUCKNOW [2009 (248) E.L.T 559 (TRI. – DEL.)]
• COMMISSIONER OF C. EX., RAIPUR V. BHARAT ALUMINIUM CO. LTD. [2009 (246) E.L.T 388 (TRI. – DEL.)]
• UNION OF INDIA V. HINDUSTAN ZINC LTD. [2007 (214) E.L.T. 510 (RAJ.)]
• BANCO PRODUCTS (INDIA) LTD. V. COMMISSIONER OF C. EX., VADODARA-1 [2009 (235) E.L.T. 636 (TRI. – LB)]
• ISPAT INDUSTRIES LTD. V. COMMISSIONER OF CENTRAL EXCISE, MUMBAI [2006 (195) E.L.T. 164 (TRI. – MUMBAI)]
• DIVI’S LABORATORIES LTD. V. COMMISSIONER OF C. EX., VISAKHAPATNAM 2006 (196) E.L.T. 285 (TRI. – BANG.)]
• COMMISSIONER OF CENTRAL EXCISE, TIRUCHIRAPALLI V. M/S INDIA CEMENTS LTD [2011-TIOL-558-HC-MAD-CX]
• BHARAT ALUMINIUM CO. LTD. (BALCO) V. COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2007 (8) S.T.R. 27 (TRI. – DEL.)]
• AVURVEDICS V. COMMISSIONER OF CENTRAL EXCISE, NOIDA [2004 (173) E.L.T. 337 (ALL.)]
• COMMISSIONER V. SHAHNAZ AYURVEDICS /2004 (174) E. L.T. 434 (S.C.)]
• COMMISSIONER OF CENTRAL EXCISE, HYDERABAD V. ITW SIGNODE (INDIA) LTD. [2005 (179) E.L.T. 120 (TRI. – BANG.)]
• JAGAN TUBES LIMITED V. COMMISSIONER OF C. EX., CHANDIGARH [2004 (178) E.L.T. 596 (TRI. – DEL.)]
• SUTHAM NYLOCOTS V. COMMISSIONER OF C. EX., COMBATORE [2003 (161) E.L.T. 287 (TRI. – CHENNAI)]
• LARSEN & TOUBRO LTD. V. COMMISSIONER OF C. EX., PUNE-II /2007 (211) E. L.T. 513 (S.C.)]
• CONTINENTAL FOUNDATION JT. VENTURE V. COMMR. OF C. EX., CHANDIGARH [2007 (216) E.L.T. 177 (S.C.)
• MARSHA PHARMA PVT. LTD. V. COMMISSIONER OF C.EX., VADODARA [2009 (248) E.L.T. 687 (TRI. – AHMD.)]
• COMMISSIONER OF CENTRAL EXCISE, JAIPUR v. M/S. RAJASTHAN SPINNING & WEAVING MILLS LTD.- 2010-TIOL-51-SC-CX

03. Shri Tara Prakash, learned Assistant Commissioner (AR) appearing for the revenue reiterates the finding of the impugned order.

04. We have carefully considered the submissions made by both the sides and perused the records. We find that the adjudicating authority has denied the cenvat credit in respect of Cement, TMT bars, MS angles, channels, beams, racks, plates, etc. used for making foundation of machineries installed in the factory premises and also for making structures for support of the plant. The credit was denied mainly on the ground that the amendment in Rule 2(a) brought by notification no. 16/2009-CE (N.T.) barred the availment of cenvat credit on the goods in question from retrospective effect. This finding of the adjudicating authority is based on the larger bench judgment of the tribunal in the case of VANDANA GLOBAL LTD. In this regard, we find that much water was flown on this issue and not only the VANDANA GLOBAL LTD. larger bench judgment was upset by the Hon’ble Chhattisgarh High Court in the case of VANDANA GLOBAL LTD.- 2018 (16) GSTL 462 (Chhattisgarh) but also by various subsequent judgment mainly by jurisdictional high court in the case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD.- 2015 (39) S.T.R. 726 (Guj.).wherefrom, the relevant part of the order is reproduced below:-

“8. Mr. Y.N.Ravani, learned counsel for the revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited Vs Commissioner of Central Excise, Raipur, 2010 (253) E.L.I. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules 2004 which come into force on 7.7.2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision.”

In view of the above legal position, the amendment of notification no.16/2009-CE (N.T.) was held to be inapplicable for the period prior to the date of notification i.e. 07.07.2009. On this ground, the denial of cenvat credit by the adjudicating authority is not legal and correct.

4.1 As regard the period post 07.07.2009, it is the submission of the appellant that the credit subsequent to this date was already taken prior to 07.07.2009. In this fact, we are of the opinion that the credit was already accrued before the amendment of Rule 2(a) of Cenvat Credit Rules, 2004 therefore, the amendment of notification no. 16/2009-CE (N.T.) shall not apply on such credit which was accrued prior to 07.07.2009. Moreover, the appellant have claimed the credit under capital goods. Such capital goods were as parts and components used as support structure for plant and machinery erected and installed in the factory of the appellant. On this ground also the credit is admissible to the appellant accordingly, we are of the considered view that appellant are entitled for cenvat on the goods in question as per the settled legal position in the various judgments cited by them particularly in the case of Hon’ble Chhattisgarh High Court judgment in VANDANA GLOBAL LTD. and Hon’ble Gujarat High Court in the case of MUNDRA PORTS & SPECIAL ECONOMIC ZONE LTD. (supra).

05. Accordingly, the impugned order is not sustainable hence, the same is set aside. Appeal is allowed with consequential relief if any, in accordance with law.

(Pronounced in the open court on 28.11.2022)